STATUTES
GOVERNMENT OF NIUE, ALOFI
2006
Copyright 2006 All rights reserved
Enquiries concerning the copyright material
should be addressed to the
Crown Law Office, Alofi, Niue
Printed by Stylex Print, Palmerston North, New Zealand
VOLUME THREE
National Disaster Relief Fund Act 1980 ............................................................... 1133
New Zealand Representative Act 1981 ................................................................ 1135
Niue Act 1966 .......................................................................................................... 1139
Niue Amendment Act (No 2) 1968 ....................................................................... 1231
Niue Assembly Act 1966 ........................................................................................ 1253
Niue Bank Act 1994 ................................................................................................ 1297
Niue Certification Authority Act 1978 ................................................................. 1333
Niue Cultural Council Act 1986 ............................................................................ 1335
Niue Development Bank Act 1993 ....................................................................... 1339
Niue Development Bonds Act 1994 ..................................................................... 1355
Niue Flag Act 1975 .................................................................................................. 1365
Niue Philatelic and Numismatic Act 1996 .......................................................... 1367
Niue Trust Fund Act 2004 ...................................................................................... 1371
Occupiers’ Liability Act 1962 ................................................................................ 1373
Partnership Act 1908 .............................................................................................. 1377
Partnership Application Act 1994 ......................................................................... 1391
Pensions and Benefits Act 1991 ............................................................................. 1399
Pesticides Act 1991 .................................................................................................. 1405
Pig Control Act 1998 ............................................................................................... 1411
Price Control on Imported Goods for Resale in Niue Act 1975 ....................... 1417
Proceeds of Crime Act 1998 ................................................................................... 1421
Property Law Act 1952 ........................................................................................... 1459
Public Emergency Act 1979 ................................................................................... 1487
Public Health Act 1965 ........................................................................................... 1491
Public Notaries Act 1998 ........................................................................................ 1511
Public Revenues Act 1959 ...................................................................................... 1513
Public Service Savings and Loan Society Act 1980 ............................................ 1525
Race Relations Act 1972 ......................................................................................... 1535
Reprint of Statutes Act 1991 .................................................................................. 1543
Royal Titles Act 1974 .............................................................................................. 1545
Sale of Goods Act 1908 ........................................................................................... 1547
Seal of New Zealand Act 1977 .............................................................................. 1563
Territorial Sea and Exclusive Economic Zone Act 1996 .................................... 1565
Terrorism Suppression and Transnational Crimes Act 2006 ............................ 1587
Tourist Authority Act 1995 .................................................................................... 1607
Transport Act 1965 .................................................................................................. 1615
Trustee Act 1956 ...................................................................................................... 1651
Trustee Companies Act 1995 ................................................................................. 1699
Trusts Act 1994 ........................................................................................................ 1701
United Nations Act 1946 ........................................................................................ 1729
Village Councils Act 1967 ...................................................................................... 1731
Visiting Forces Act 1939 ......................................................................................... 1747
Water Resources Act 1996 ...................................................................................... 1753
Wildlife Act 1972 ..................................................................................................... 1767
Wills Act 1837 .......................................................................................................... 1771
Wills Act Amendment Act 1852 ............................................................................ 1779
Wreck and Salvage Act 1968 .................................................................................. 1781
1133
NATIONAL DISASTER RELIEF FUND ACT 1980
1980/61 – 10 November 1980
|
1 |
Short title |
6 |
Investment of moneys of the Fund |
|
2 |
Interpretation |
7 |
Expenditure of moneys of the Fund |
|
3 |
National Disaster Relief Fund established |
8 |
Annual accounts and audit |
|
4 |
General objects of the Fund |
9 |
Annual report |
|
5 |
National Disaster Relief Fund Account |
10 |
Delegated authority |
To establish and control a fund to be used to repair damage suffered by public property during national disasters and to provide assistance to victims of such national disasters
1 Short title
This is the National Disaster Relief Fund Act 1980.
2 Interpretation
In this Act –
“Fund” means the National Disaster Relief Fund;
“national disaster” means any storm, tempest, cyclone, flood, earth tremor,
drought, fire, disease or act of God from any cause whatsoever as
declared a national disaster by Cabinet and includes any public
emergency proclaimed under the Public Emergency Act 1979.
3 National Disaster Relief Fund established
(1) There is hereby established a fund to be called the National Disaster
Relief Fund.
(2) The resources of the Fund shall consist of the following –
(a) Contributions by the Government of Niue and other governments;
(b) Contributions by private organisations whether domestic or
international with contributions by private individuals;
(c) Returns from investments made from the Fund.
4 General objects of the Fund
The general objects for which moneys in the Fund may be applied are –
(a) The repair of damage suffered to public property during a national
disaster;
(b) The immediate provision of financial and other assistance to victims
of national disasters.
1134 Niue Laws 2006 Vol 3
5 National Disaster Relief Fund Account
There is hereby established a Fund account with the Treasury Department
of Niue to be called the National Disaster Relief Fund Account and all of the Fund’s
moneys shall be paid into the Fund Account.
6 Investment of moneys of the Fund
The Financial Secretary may invest any moneys of the Fund in accordance
with laws, rules and regulations for the time being in force in Niue regarding
investments of public funds.
7 Expenditure of moneys of the Fund
Subject to section 6, no moneys shall be paid out of the Fund Account except
with the approval of the Financial Secretary acting within the objects specified in
section 4 for the specific purposes and in the manner approved by Cabinet.
8 Annual accounts and audit
(1) At the close of each financial year the Financial Secretary shall cause to
be prepared in respect of the Fund a revenue and expenditure account for that
year together with a balance sheet showing the assets and liabilities of the Fund.
(2) That account and balance sheet shall be audited as prescribed by article
60 of the Constitution.
9 Annual report
The Financial Secretary shall in each financial year cause to be prepared a
report of the Fund’s operations during the preceding year and such report together
with the audited statements and balance sheet mentioned in section 8 shall be laid
before the Assembly at its first session after the audited statements and balance
sheet are available and shall receive such publicity as the Assembly directs.
10 Delegated authority
(1) Where Cabinet has delegated all or any of its authority in times of public
emergency or national disaster to persons other than Cabinet under section 3 of
the Public Emergency Act 1979 those persons shall have full authority under section
7 of this Act to approve the expenditure of moneys from the Fund, as if such
expenditure was approved by Cabinet itself.
(2) Any such expenditure from the Fund and circumstances of that
approval shall be brought to the notice of the Cabinet by the Premier at the earliest
possible opportunity.
1135
NEW ZEALAND REPRESENTATIVE ACT 1981
1981/69 – 1 August 1981
|
1 |
Short title |
8 |
Premier may determine fiscal privileges | ||
|
2 |
Interpretation |
9 |
Proof of status | ||
|
3 |
The Government of New Zealand |
10 |
Privileges and immunities | ||
|
4 |
Office of the New Zealand Representative |
11-12 |
[Spent] | ||
|
5 |
Diplomatic staff | ||||
|
6 |
Members of families of diplomatic staff |
SCHEDULE | |||
|
7 |
Other staff members and their families |
Relating to the legal status of the representative of the Government of New
Zealand in Niue and of designated members of his staff and their families
1 Short title
This is the New Zealand Representative Act 1981.
2 Interpretation
(1) In this Act –
“diplomatic courier of the Government of New Zealand” means a person
(not being ordinarily resident in Niue) to whom the Government of
New Zealand has for the time being provided an official document
indicating –
(a) His status as a diplomatic courier of the Government of New
Zealand; and
(b) The number of packages constituting each bag carried by him and
used for the official correspondence of the Government of New
Zealand;
“diplomatic staff of the Office of the New Zealand Representative” means
the New Zealand Representative, and those members of the staff of his
office who for the time being hold any of the positions specified in the
Schedule;
“New Zealand Representative” means the person who is for the time being
recognised by the Government of Niue as the representative of the
Government of New Zealand in Niue;
“1968 Act” means the Diplomatic Privileges and Immunities Act 1968.
(2) In this Act a reference to a person ordinarily resident in Niue shall
include a reference to –
(a) Any person belonging to that part of the Polynesian race indigenous
to Niue; and
(b) Any person for the time being living in Niue otherwise than for the
sole purpose of –
1136 Niue Laws 2006 Vol 3
Act –
(i) performing his duties as a member of the Office of the New
Zealand Representative; and
(ii) being a member of family forming part of the household of a
person referred to in sub-paragraph (i).
(3) For the purposes of this Act, every reference in the Schedule to the 1968
(a) To the sending state shall be construed as a reference to New
Zealand;
(b) To the receiving state or to the country shall be construed as a
reference to Niue;
(c) To a national of the receiving state shall be construed as a reference
to a person who is ordinarily resident in Niue;
(d) To the Ministry of Foreign Affairs shall be construed as a reference
to the Office of the Secretary to the Government of Niue;
(e) To the head of mission shall be construed as a reference to the New
Zealand Representative;
(f) To the mission shall be construed as a reference to the Office of the
New Zealand Representative.
3 The Government of New Zealand
The Government of New Zealand shall be accorded the same privileges
and immunities as are accorded to a sending state by the 1968 Act.
4 Office of the New Zealand Representative
(1) The office of the New Zealand Representative shall be accorded the
same privileges and immunities as are accorded to a diplomatic mission by the
1968 Act.
(2) (a) The premises, furnishings, means of transport and other property
of the Office of the New Zealand Representative; and
(b) The archives and documents of the Office of the New Zealand
Representative; and
(c) The official correspondence of the New Zealand Representative;
and
(d) Articles for the official use of the Office of the New Zealand
Representative,
shall be accorded the same privileges and immunities as the case requires as are
accorded to those of a diplomatic mission by the 1968 Act.
(3) Without limiting the generality of section 3 and subsections (1) and (2)
of this section –
(a) The 1968 Act shall apply to every bag used for the official
correspondence of the Government of New Zealand as if it were a
diplomatic bag referred to in that Act; and
(b) Every diplomatic courier of the Government of New Zealand shall
be accorded the same personal inviolability, protection, and
immunity as are accorded to diplomatic couriers under the 1968
Act.
New Zealand Representative Act 1981
1137
5 Diplomatic staff
(1) Every member of the diplomatic staff of the office of the New Zealand
Representative shall be accorded the same privileges and immunities as are
accorded to a diplomatic agent by the 1968 Act.
(2) The private residence of every member of the diplomatic staff of the
Office of the New Zealand Representative shall be accorded the same privileges
and immunities as are accorded to that of a diplomatic agent under the 1968 Act.
(3) The papers, correspondence, property and articles for the personal use
of each member of the diplomatic staff of the Office of the New Zealand
Representative shall be accorded the same privileges and immunities as the case
requires as are accorded to those of a diplomatic agent under the 1968 Act.
6 Members of families of diplomatic staff
Every person, being a member of the family and forming part of the
household of a member of the diplomatic staff of the Office of the New Zealand
Representative and not in any case being ordinarily resident in Niue shall be
accorded the same privileges and immunities as are accorded to members of the
diplomatic staff of that office by section 5.
7 Other staff members and their families
(1) Every person who is –
(a) A member of the administrative or technical staff of the Office of
the New Zealand Representative; or
(b) A member of the family, forming part of the household of a member
of the administrative or technical staff of the Office of the New
Zealand Representative; or
(c) A member of the service staff of the Office of the New Zealand
Representative –
not in any case being ordinarily resident in Niue shall be accorded the same
privileges and immunities as the case requires as would be accorded to that person
under the 1968 Act if that office were a diplomatic mission.
(2) Every person, being a member of the administrative, technical, or service
staff of the Office of the New Zealand representative who is ordinarily resident in
Niue, shall be accorded immunity from jurisdiction and inviolability in respect of
official acts performed in the exercise of his functions.
8 Premier may determine fiscal privileges
Without prejudice to sections 3 to 7, the Premier with the concurrence of
Cabinet, may determine, either generally or in any case or class of case, the fiscal
privileges which shall be accorded to the Office of the New Zealand Representative
or persons connected with that Office notwithstanding that the determination
may extend treatment more favourable than that required by this Act, and may in
like manner determine the terms and conditions on which these privileges may
be enjoyed.
9 Proof of status
If in any proceeding any question arises as to whether or not any person is
or was at any time or in respect of any period accorded any privilege, or immunity,
under or by virtue of this Act, a certificate issued by the Secretary to the
Government stating any fact relevant to that question shall be conclusive evidence
of that fact.
1138 Niue Laws 2006 Vol 3
10 Privileges and immunities
Subject to this Act, privileges and immunities conferred by or by virtue of
this Act shall be conferred on the same terms and conditions as to commencement
and cessation, and as to waiver, as are provided in the 1968 Act.
11-12 [Spent]
–––––––––––––––––––– SCHEDULE
DIPLOMATIC STAFF OF THE OFFICE OF THE NEW ZEALAND REPRESENTATIVE
Deputy New Zealand Representative
Minister
Counsellor
First Secretary
Second Secretary
Third Secretary
Attache
1139
NIUE ACT 1966
1966/38 (NZ) – 1 January 1967
1 Short title
2-3 [Repealed]
71 Procedure so far as not governed by rules of Court
4–14D [Repealed]
15-20 [Repealed]
21 Persons authorised to practise medicine
or surgery
22 Offences
23 Director of Health
23A Medical services
24-25 [Repealed]
26 Establishment of prisons
27 Detention of persons in custody
28 Labour instead of imprisonment
29 [Repealed]
29A Prisons and criminal justice
30 [Repealed]
PART 2
THE LEGISLATIVE GOVERNMENT OF NIUE
31-48 [Repealed]
49 Regulations
50-52 [Repealed]
PART 3
THE HIGH COURT OF NIUE
Constitution of the High Court
53-59 [Repealed]
60 Commissioners of High Court
61 [Repealed]
62 Registrar and Deputy Registrar of the
High Court
63 [Repealed]
64 Seal of the High Court
65 Records of the High Court
Jurisdiction of the High Court
66-67 [Repealed]
68 Habeas corpus
69 Custody of minors
Procedure of the High Court
70 Rules of Court
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
96A
97
98
99
100
101
102
103
104
105
Commissioners to take evidence
Evidence by affidavit sworn out of
Niue
Witnesses may be ordered out of Court
Affidavits in Niue
Evidence by affidavit
Right of audience in the High Court
Costs
Security for costs
Court fees
Minutes of judgments
Amendments
Rehearing of civil proceedings
Rehearing of criminal proceedings
Execution of Judgments Writs of sale and possession Effect of writ of possession Effect of writ of sale
Issue of writs of sale or possession
Charging orders
Stay of execution
Judgment summons
Enforcement of foreign judgments
Absconding Debtors
Order of arrest of absconding debtor
Commissioner and Justices’ authority
Security to be given
Enforcement of security
Arrest in actions for penalties
Enforcement of security in actions for
penalties
Contempt of the High Court Contempt of Court defined Penalty for contempt Jurisdiction in contempt
Contempt in the face of the Court
Discharge of persons in contempt
1140 Niue Laws 2006 Vol 3
PART 4
THE HIGH COURT
106 [Repealed]
107 Declarations
108 [Repealed]
109 Cases stated
110 [Repealed]
Appeals from the High Court
111-112 [Repealed]
113 Transmission of record
114 Dismissal of appeal for non-
prosecution
115 Procedure on appeal
116 [Repealed]
117 Powers of Court of Appeal
118 Evidence on appeal
119 Stay of execution
120 Release of appellant from custody
121 Appeal not to be allowed for
irregularities
122 Right of audience on appeal
123 Transmission of order of Court of
Appeal
124-125 [Repealed]
Enforcement in Niue of Judgments of New Zealand Courts
126 Judgments of High Court or a District Court in New Zealand may be enforced by the High Court
127 Enforcement of judgments of the High Court of New Zealand by High Court by way of proceedings for contempt
128 [Repealed]
PART 5
CRIMINAL OFFENCES
129 Seditious offences
130 Punishment of seditious offences
131 Homicide
132 Killing of a child
133 Culpable homicide
134 Murder
135 Further definition of murder
136 Provocation
137 Illegal arrest may be evidence of
provocation
138 Punishment of murder
139 Manslaughter
140 Punishment of manslaughter
141 Omissions dangerous to life
142 Duty to provide the necessaries of life
143 Duty of parent or guardian to provide
necessaries
144 Liability for dangerous things
145 Hastening death
146 Indirect cause of death
147 Attempted murder
148 Conspiracy and inciting to murder
149 Counselling suicide
150 Concealment of birth
151 Grievous bodily harm
152 Actual bodily harm
153 Omissions resulting in bodily harm
154 Intentionally endangering persons on
aerodromes
155 Wantonly endangering persons on
aerodromes
156 Indecent assault
157 Assault
157A Cruelty to a child
158 Resisting constable in execution of his
duty
159 Abduction of girl under 15
160 Abduction of children
161 Sexual intercourse
162 Rape
163 Sexual intercourse or indecency with
girl under 12
164 Sexual intercourse or indecency with
girl between 12 and 15
165 Sexual intercourse with woman or girl
who is an idiot or imbecile or of
unsound mind
166 Procuring miscarriage of woman or girl
167 Act of woman or girl procuring her
own miscarriage
168 Supplying means of miscarriage
169 Bigamy
170 Buggery
171 Attempted buggery and indecent
assaults on males
172 Incest
173 Indecent acts
174 Indecent documents
175 Brothels
176 Gaming houses
176A Powers to permit gambling
177 Riot
178 Forcible entry
179 Affrays
CRIMES AFFECTING THE ADMINISTRATION OF LAW AND JUSTICE
Bribery and Corruption
180 Interpretation
180A Judicial corruption
180B Bribery of judicial officer
180C Corruption and bribery of Minister
180D Corruption and bribery of member of
Assembly
Niue Act 1966 1141
180E Corruption and bribery of law enforcement officer
180F Corruption and bribery of official
180G Corrupt use of official information
180H Restrictions on prosecutions
181 Perjury
182 Fabricating evidence
183 Conspiracy to pervert justice
184 Breaking prison
185 Escape
186 Rescue
187 Criminal libel or slander
188 Definition of theft
189 Ineffectual defences to charge of theft
190 Extended definition of theft
191 Obtaining money or goods by false
pretences
192 Punishment of theft
193 Stealing documents
194 Receiving stolen goods
195 Robbery
196 Conversion or attempted conversion
197 Breach of trust
198 Menaces
199 Witchcraft
200 Obtaining credit by fraud
201 Accusation of criminal offences
202 Conspiracy to defraud
203 Obtaining execution of valuable
securities by fraud
204 Burglary
205 Unlawful entry of dwellinghouse
205A Entering premises for a criminal
purpose
206 Threats to kill or do bodily harm
207 Forgery
208 Extended definition of forgery
209 Making counterfeit coin
210 Lightening coin
211 Uttering counterfeit coin
212 Arson
213 Wilful mischief to property
214 Provoking breach of the peace
215 Profane, indecent, or obscene language
216 Disorderly conduct in public places
217 Obstructing public place
218 Drunkenness
219 Animal trespass
220 Prostitution
221 Laying poison
222 Polluting water
223 Sale of unwholesome provisions
224 Insanitary premises
225 Wilful trespass
226 Cruelty to animals
227 Falsely trading as a company
228 Conspiracy
228A Wrongful communication, retention or
copying of official information
Attempts
229 Attempts to commit offences
230 Attempt proved when offence is
charged
231 Offence proved when attempt is
charged
Parties to Offences
232 Inciting
233 Parties to offences
234 Common criminal purpose
235 Counselling or procuring
236 Accessory after the fact
237 Punishment of accessories
Infancy
237A Children under 10
237B Children between 10 and 14
Defences
238 Common law defences
239 Common law offences
Sentences
240 Power to fine instead of or in addition
to imprisonment
241 Enforcement of fines
242 Imprisonment in Niue
243 Transfer of convicted persons to New
Zealand
244 Release of prisoners transferred to New
Zealand
244A Recall of offender subject to supervision
245 Person conditionally released from
imprisonment
246 Cumulative sentences
PART 6
CRIMINAL PROCEDURE
247 [Repealed]
248 Jurisdiction of High Court
249 [Repealed]
Preliminary Proceedings
250 Arrest without warrant
251 Arrest on warrant of Commissioner
251A Duty of persons arresting
252 Committal for trial
Trial by the High Court
253 Information
254 Warrant or summons
1142 Niue Laws 2006 Vol 3
255 Warrant after issue of summons
255A Arrested person may be released on
bail
256 Prisoners brought before Court before
commencement of prosecution
257 Remand
258 Trial of accused in his absence
Assessors
259 Constitution of Court in criminal trials
260 Judge with assessors
261 Judge without assessors
262 Judge with or without assessors as he
thinks fit
263 Order appointing assessors
264 Number and qualifications of assessors
265 Default of assessors
266 Remuneration of assessors
267 Oath of assessors
268 Change of assessors
269 Discharge of assessors and new trial
270 Concurrence of assessors
271 Concurrence of Judge
272 Sentence
273 Concurrence of assessors necessary for
conviction
Miscellaneous Provisions
274 Alternative and cumulative charges
275 Relation between information and
conviction
276 Withdrawal of information
277 Drawing up of conviction
278 Defects of information, summons, or
warrant
279 Payment of witnesses
280 Court may order convicted person to
come up for sentence
281 Conviction without sentence or
discharge without conviction
282 Bail
283 [Repealed]
284 Search warrants
284A Power to enter premises to arrest
offender or prevent offence
285-286 [Repealed]
286A Parole Board
287 Compensation for loss of property
PART 7
LAW OF EVIDENCE
288 Definitions
289 Discretionary power to admit or reject
evidence
290 All witnesses competent
291 Evidence of parties and their spouses
292 Evidence of accused persons and their spouses
293 Cross-examination as to credit
294 Criminating questions
295 Evidence of prisoners
296 Judicial notice of enactments
297 Judicial notice of seals
298 Power to administer oaths
299 Form of oath
300 Absence of religious belief
301 Affirmation may be made instead of
oath
302 Form of affirmation
303 Evidence of children without oath
304 Necessity of oath
PART 8
EXTRADITION
Extradition from Niue to New Zealand or to the
Cook Islands
305 Arrest in Niue of fugitive offenders
from New Zealand or the Cook Islands
306 Order of return to New Zealand or to
the Cook Islands
307 Refusal of order in case of hardship
308 Imprisonment or release pending
return
309 Release on security instead of return
310 [Repealed]
311 Cancellation of order of return
Extradition from New Zealand to Niue
312 Arrest in New Zealand of fugitive
offenders from Niue
313 Order of return to Niue
314 Judicial notice of signature to warrant
315 Refusal of order in case of hardship
316 Imprisonment or release pending
return
317 Release on security instead of return
318 Return to Niue in custody
319 Cancellation of order of return
Application of Extradition Act to Niue
320 Extradition Act in force in Niue
PART 9
321-322 [Repealed]
PART 10
323-334 [Repealed]
PART 11
335-385 [Repealed]
Niue Act 1966 1143
PART 12
386-404 [Repealed]
PART 13
405-414 [Repealed]
PART 14
415-430 [Repealed]
PART 15
431-460 [Repealed]
PART 16
LAND DEVELOPMENT
461 Application of this Part
462 Cabinet may cultivate land on behalf
of owners
463 Disposal of revenues received by
Cabinet
464 Money to be paid out of or into Niue
Government Account
465 [Repealed]
466 Interference and obstruction prohibited
467 [Repealed]
PART 17
468-483 [Repealed]
property
512 Enforcement of trusts
513 Co-trustees must act jointly
514 Remuneration of trustees
PART 21
MARRIAGE
515 Prohibited degrees of consanguinity or
affinity
516 Marriages to take place before Marriage
Officer
517-518 [Repealed]
519 Offence
520 Notice of marriage
521 Mode of solemnisation
522 Record of marriage
523 Signature of record
524 Transmission of record
525 Minimum age of marriage
526 Marriage of minors
527 Offence by Marriage Officer
528 Signature of false record by party or
witness
529 Misrepresentation as to facts to procure
marriage
PART 22
DIVORCE
PART 18
484-488 [Repealed]
PART 19
NIUEAN SUCCESSION
489 Wills of Niueans
490 Succession to deceased Niueans
491 Niuean land not to vest in
administrator
492-496 [Repealed]
497 Niuean land not assets for payment of
debts
498-499 [Repealed]
PART 20
TRUSTEES FOR NIUEANS
500 Definition of “person under disability”
501 Trustee orders
502 Matters to be set forth in trustee orders
503 Appointment of new trustees
504 Orders restricting powers of trustees
505 Cancellation of trustee orders
506 Determination of trustee orders
507 Trust property not to vest in trustee
508 Administration of property by trustee
509 Alienation of property by trustee
510 Powers of trustee
511 Expenditure of revenues of trust
530 [Repealed]
531 Nullity of marriage
532 [Repealed]
533 Domicile of a married woman
534 Grounds of divorce and jurisdiction of
High Court
535 Grounds of refusal of divorce
536 Discretion to refuse decree in certain
cases
537 Co-respondent as a party
538 [Repealed]
539 Agreement no bar to divorce
540 No appeal to Court of Appeal
541-542 [Repealed]
543 Order for maintenance of divorced wife
544 Order as to custody of children
545 Molestation of divorced wife by her
husband
546 [Repealed]
PART 23
MAINTENANCE AND AFFILIATION
547 Interpretation
548 [Repealed]
549 Applications
550 [Repealed]
551 Affiliation orders
552 Evidence
1144 Niue Laws 2006 Vol 3
553 Maintenance order in favour of illegitimate child
554 Maintenance order against father in favour of child
555 Maintenance order against mother in favour of child
556 Maintenance order against husband
557 Maintenance order against wife
558 Maintenance order against any person
in favour of father or mother
559 Disobedience to maintenance order
560 Maintenance money a debt
561 Order in favour of non-residents
562 Order against non-residents
563 Orders in absentia
564 Repeated applications
565 Payments not to be made in advance
566 Cancellation, variation, and suspension
of orders
567 Payment of maintenance money
568 Security for obedience to maintenance
orders
569 Operation of agreements
570 Purport and duration of maintenance
orders
571 Order for past maintenance
Offences
572 Leaving Niue while maintenance
money in arrear
573 Leaving Niue after affiliation order and
before birth of child
574 Leaving Niue with intent to disobey
maintenance order
575 Leaving Niue while failing to maintain
wife
576 Leaving Niue while failing to maintain
child
577 Leaving Niue with intent to desert wife
or child
578 [Repealed]
579 Evidence of intent
PART 24
580-592 [Repealed]
PART 25
593-599 [Repealed]
PART 26
PERSONS OF UNSOUND MIND
Orders of Medical Custody
600 Application by Medical Officer to
Court
601 Medical certificates as to persons of
unsound mind
602 Order of medical custody
603 Renewal of order
604 Cancellation of order
605 [Repealed]
606 Arrest and detention of persons
committed to medical custody
607 [Repealed]
608 Removal from Niue to New Zealand
609 Conditions of removal
610 Method of removal
611 Admission to hospital of persons
removed to New Zealand
612 [Repealed]
613 No committee of estate of person of
unsound mind
614 Warrant for arrest of persons of
unsound mind
615 Arrest without warrant of persons of
unsound mind
615A Commissioner and Justices may act for
Judge
Persons of Unsound Mind Charged with Offences
616 Insane persons not to be tried for
offences
617 Accused persons acquitted on ground
of insanity
618 Discharge
619 Orders of medical custody
620 The defence of insanity in criminal
prosecutions
PART 27
621-633 [Repealed]
PART 28
634-644 [Repealed]
PART 29
NIUEAN ANTIQUITIES
645 Interpretation
646 [Repealed]
647 Niuean antiquities to be offered for sale
before exportation
648 Power to detain Niuean antiquities
attempted to be exported
649 Exporting Niuean antiquities without
permission
650 Power to remove antiquities in certain
cases
651 Right to copy of antiquities intended to
be exported
652 Cabinet to decide what articles come
under this Part
653 [Repealed]
Niue Act 1966 1145
PART 30
CUSTOMS
654-655A [Repealed]
656 Goods may be imported from New
Zealand or Cook Islands free of duty
657-658 [Repealed]
PART 31
659-671 [Repealed]
PART 32
THE LAWS OF NIUE: GENERAL PROVISIONS
Application of the Laws of New Zealand
672–677 [Repealed]
678 Criminal procedure in Niue
679-689 [Repealed]
689A Misuse of Drugs Act in force in Niue
690-705 [Repealed]
706 Limitation of actions
Miscellaneous Rules of Law
707 Legal status of married women
708 Legitimacy
709 Joint liability
710 Contracts of guarantee
711-713 [Repealed]
714 Liability of owners of dogs
715 Distress for rent abolished
716 Libel and slander
717-719 [Repealed]
720 Statutory declarations
721 [Repealed]
722 Taxes on Niuean land
723 [Repealed]
724 Warrants of arrest
725 Trespass ab initio
726 [Repealed]
727 [Repealed]
727A Births and deaths
728-735 [Repealed]
736 Contributory negligence
737 Protection of intellectual property
738 Aerodromes
SCHEDULES
1146 Niue Laws 2006 Vol 3
To consolidate and amend certain enactments relating to the Government and laws of Niue
THE EXECUTIVE GOVERNMENT OF NIUE
4–14D [Repealed by 1974/64]
15 [Repealed by 1974/64]
16–19 [Repealed by 2004/270]
20 [Repealed by 1974/64]
21 Persons authorised to practise medicine or surgery
(1) No person shall practise medicine or surgery in Niue, for fee, salary, or
other remuneration or reward of any nature whatsoever, unless –
(a) He is registered as a medical practitioner in New Zealand;
(b) He holds a certificate issued under the hand of the Secretary to the
Medical Council of New Zealand that, in the opinion of that Council,
he has attained a standard of practice in medicine and surgery
equivalent to that required for registration as a medical practitioner
in New Zealand;
(c) He –
(i) is a graduate of the Fiji School of Medicine; or
(ii) holds a certificate issued under the hand of the Director of
Health that, in the opinion of the Director, he is a graduate of a
school of medicine equivalent in standard to the Fiji School of
Medicine, and has attained a competent standard of practice
in medicine and surgery.
(2) Notwithstanding subsection (1) (c) –
(a) If no conditions are prescribed by Act and the position of Director
of Health is vacant and no acting Director of Health has been
appointed; or
(b) If no conditions are so prescribed and the Director of Health is absent
from Niue or is otherwise incapable of performing his duties,
exercising his powers, and carrying out his functions,
any such graduate employee may practise medicine or surgery in Niue, subject to
the general control of Cabinet and not otherwise.
Niue Act 1966 1147
22 Offences
(1) Every person commits an offence who, not being a medical officer –
(a) Directly or by implication represents or holds himself out to be a
medical officer; or
(b) Engages, for or without any fee, salary, or other remuneration or
reward, in the practice of medicine or surgery, or any branch of
medicine or surgery, under the style or title of physician, surgeon,
doctor, licentiate in medicine or surgery, bachelor of medicine, or
medical practitioner, or under any name, title, addition, or
description implying that he holds any degree or diploma in
medicine or surgery or in any branch of medicine or surgery, or is
otherwise specially qualified to practise medicine or surgery or any
branch of medicine or surgery.
(2) Every person who commits an offence against this section is liable –
(a) On a first conviction, to a fine not exceeding 1 penalty unit, and,
where the offence is a continuing one, to a further fine not exceeding
1 penalty unit for each day on which the offence has continued;
(b) On a second or subsequent conviction, to imprisonment for a term
not exceeding 2 months or to the penalties specified in paragraph
(a).
23 Director of Health
(1) There shall be appointed by the Niue Public Service Commission a
Director of Health of Niue.
(2) No person shall be qualified to be appointed or to hold office as Director
of Health of Niue, unless –
(a) He is qualified to practise medicine and surgery under section 21
(1)(a) or (b);
(b) Being a graduate of the Fiji School of Medicine he holds such other
qualification, or has had such work experience in medicine, or has
a combination of such other qualification and such world experience
in medicine, as the Commission thinks fit.
(3) [Spent]
(4) Whenever the position of Director of Health is vacant, or the Director
of Health is absent from Niue or is in the opinion of the Niue Public Service
Commission unable, by reason of physical or mental disability, to perform the
functions of his office, the Niue Public Service Commission, may, by an instrument
in writing appoint any medical officer to be the acting Director of Health:
Provided that no medical officer, other than a person qualified to be
appointed as Director of Health, shall be appointed acting Director of Health unless,
in the opinion of the Niue Public Service Commission there is in Niue no medical
officer who is qualified and willing to occupy the position of Director of Health,
and is capable of performing the duties, exercising the powers, and carrying out
the functions of the Director of Health.
(5) Any appointment made under subsection (4) of an acting Director of
Health may, by an instrument in writing at any time be revoked by the Niue Public
Service Commission.
(6) An acting Director of Health shall, during the subsistence of his
appointment, perform all the duties, exercise all the powers, and carry out all the
functions of the Director of Health, whether conferred by this Act or any other
enactment.
1148 Niue Laws 2006 Vol 3
(7) The appointment of an acting Director of Health shall not, on the grounds that the occasion for the appointment has not arisen or has ceased, be impugned or called into question in any proceedings in any court or otherwise howsoever.
(8) The Director of Health shall be responsible, in Niue, for the administration of all laws relating to public health, mental health, hospitals, medical and surgical services, and the quarantine of persons.
23A Medical services
(1) Without restricting section 23 (8) it shall be the duty of the Director of
Health to provide for all persons in Niue such medical and surgical services as
may be reasonably required and reasonably practicable.
(2) Medical and surgical treatment, aid, and attendance provided by any
medical officer employed in the Niue Public Service may, in the case of Niueans,
be gratuitous; and shall, in the case of all other persons, be subject to payment of
any reasonable and proper fees which may either generally or in any particular
instance, be fixed or prescribed by Cabinet and all fees for such treatment, aid,
and attendance shall be paid into and shall form part of the public revenues of
Niue.
(3) No liability shall be incurred by the Crown in respect of any failure or neglect to provide any services referred to in subsection (1) or any treatment, aid, or attendance referred to in subsection (2) or in respect of any negligence, wrongful act, or wrongful omission on the part of any medical officer employed in the Niue Public Service.
24–25 [Repealed by 2004/270]
26 Establishment of prisons
The Cabinet may, by warrant under its hand and the Seal of Niue, appoint
as prisons such buildings or places in Niue as it thinks suitable for that purpose.
27 Detention of persons in custody
(1) Any person in lawful custody in Niue may be detained in any such
prison, and may be removed by order of a Judge of the Court to any other prison
in Niue.
(2) Any person in lawful custody in Niue may, if it is inconvenient or
impracticable immediately to take him to any prison for confinement, be
temporarily detained in any other suitable place of security.
28 Labour instead of imprisonment
(1) Any person sentenced to imprisonment or committed to prison in Niue
may, by order of a Judge of the High Court made either at the time of sentence or
committal or at any time thereafter, be discharged from custody on condition that
he labours on public works in Niue for the term or the residue of the term for
which he has been so sentenced or committed.
(2) Every prisoner so discharged shall perform the labour so appointed
for him under the control and subject to the direction of some officer nominated
for that purpose by the Chief of Police.
Niue Act 1966 1149
(3) If any prisoner so discharged makes default in the due performance of the labour so appointed for him, or is guilty of any insubordination or other misconduct, whether in respect of that labour or otherwise, he may be arrested without warrant by any officer of police or of prisons; and a Judge of the High Court may (without the necessity of any judicial inquiry) revoke the discharge of that prisoner and commit him to prison for a period equal to that for which he would have been imprisoned subsequent to the order of discharge had no such order been made, with such deduction (if any) as the Judge thinks fit, having regard to the seriousness of the default, insubordination, or misconduct, and to any labour duly performed by the prisoner under the conditions of his discharge. (4) Where under subsection (3) a prisoner is committed to prison for a
term expiring before the date on which, if he had not been discharged under this
section, the original period of imprisonment would have expired, then, on the
expiration of the term for which he is committed under that subsection, the order
of discharge made under subsection (1) and subsections (2) and (3) shall again
apply to him for the residue of the term for which he was originally sentenced or
committed.
29 [Repealed by 2004/270]
29A Prisons and criminal justice
(1) Cabinet may by regulations provide for –
(a) The administration of sentences imposed by the Court (whether
involving imprisonment or not);
(b) The management and supervision of offenders placed in the custody
or under the control of the Controller of Prisons, a Superintendent,
or Parole and Probation Officers;
(c) The administration of prisons and other detention centres;
(d) The administration of the parole system and probation service;
(e) All other matters necessary or expedient for ensuring that full effect
is given to decisions of the courts in criminal matters.
(2) Regulations made under subsection (1) may provide for prison
discipline and for control of breach of discipline by the officer in charge of the
prison.
(3) Punishments imposed under regulations made under this section shall
not exceed –
(a) Confinement in a separate cell for a period of 2 weeks;
(b) The forfeiture of privileges for 3 months; or
(c) A combination of the punishments specified in paragraphs (a) to
(b).
30 [Repealed by 1974/64]
PART 2
THE LEGISLATIVE GOVERNMENT OF NIUE
31–44 [Repealed by 1974/64]
45–46 [Repealed by 1971/61]
47 [Repealed by 1974/64]
48 [Repealed by 2004/269]
1150 Niue Laws 2006 Vol 3
49 Regulations
(1) Cabinet may make such regulations as it thinks fit for the purposes of
this Act and in such regulations provide for the taking of fees, the imposing of
charges, and the imposition of penalties for contravention of regulations.
(2) Such regulations may amend or repeal the Sea Carriage of Goods Act
1940 as promulgated for Niue by the Cook Islands Sea Carriage of Goods Order
1946, and may amend or repeal the Marine Pollution Act 1974 and rules made
under it following the original extension to Niue of the Oil in Navigable Waters
Act 1965 under the Niue (New Zealand) Laws Regulations 1972.
50–52 [Repealed by 2004/270]
PART 3
THE HIGH COURT OF NIUE
Constitution of the High Court
53–59 [Repealed by 1974/64]
60 Commissioners of High Court
A Commissioner of the High Court shall possess and may exercise the
powers and functions of a Judge of that Court (whether judicial or administrative,
but excluding those vested exclusively in the Chief Justice).
61 [Repealed by 1974/64]
62 Registrar and Deputy Registrar of the High Court
(1) [Repealed by 2004/270]
(2) The Registrar of the Court shall keep the records of the High Court,
and shall perform all such administrative duties in respect of that Court as the
Chief Justice may direct.
(3) The Deputy Registrar of the Court shall, subject to the control of the
Registrar, possess, exercise, and perform the same powers, functions, and duties,
as the Registrar; and every reference in this Act to a Registrar of the High Court
shall, so far as applicable, extend and apply to the Deputy Registrar accordingly.
63 [Repealed by 2004/270]
64 Seal of the High Court
The High Court shall have in the custody of each Judge and Commissioner
and the Registrar a seal of the Court, in such form or forms as Cabinet approves,
for the sealing of all orders, warrants, records and other instruments requiring to
be sealed.
65 Records of the High Court
The Registrar of the High Court shall keep proper books in which shall be
entered minutes of all proceedings in the Court, whether in its civil or criminal
jurisdiction.
Jurisdiction of the High Court
66 [Repealed by 1974/64]
67 [Repealed by 2004/270]
Niue Act 1966 1151
68 Habeas corpus
The High Court may, on the application of any person, make an order for
the release of any person from unlawful imprisonment or detention, or for the
production before the Court of any person alleged to be unlawfully imprisoned
or detained, and every person who disobeys any such order shall be guilty of
contempt of the High Court.
69 Custody of minors
(1) The High Court may, on the application of any person, make such order
as it thinks fit with respect to the custody of any minor (being unmarried) by any
parent or guardian of that minor.
(2) Where the Court is satisfied that the minor has no parent or guardian
fit to have such custody, the Court may make such order as it thinks fit for the
custody of the minor by any other person.
(3) The jurisdiction conferred by this section shall in all cases be exercised
in such manner as the Court deems most conducive to the welfare of the minor.
70 Rules of Court
Procedure of the High Court
(1) The Cabinet may, after consultation with the Chief Justice, make rules of court determining –
(a) The practice and procedure of the High Court (whether in its civil or criminal jurisdiction, including its jurisdiction in relation to land); and
(b) The practice and procedure of the Court of Appeal.
(2) Rules of court made under subsection (1) may require an appellant to
give security for the costs of an appeal, and may provide for the dismissal of an
appeal by the High Court or by a Judge of the Court by reason of the failure of the
appellant to conform to any such requirement or to prosecute the appellant’s appeal
under those rules of court; and no appeal to the Court of Appeal lies from any
such dismissal of an appeal.
71 Procedure so far as not governed by rules of Court
Subject to any enactment, the practice and procedure of the High Court in
the exercise of its civil and criminal jurisdiction shall be such as the Court thinks
in each case to be most consistent with natural justice and convenience.
72 Forms
Subject to any enactment, all statements of claim, informations, summonses,
warrants, convictions, orders, recognisances, and other documents required or
authorised in the course of the civil or criminal jurisdiction of the High Court may
be in such form as the Court or the Judge, Registrar, or other officer by whom they
are issued, made, or received thinks sufficient.
73 Summons to witnesses
A Judge or Registrar of the High Court may in any proceedings before the
Court, whether civil or criminal, issue a summons to any person requiring him to
appear before the Court at the time and place mentioned in the summons, there to
give evidence in those proceedings or to produce any document to the Court in
those proceedings.
1152 Niue Laws 2006 Vol 3
74 Default of witness
Every person shall be guilty of contempt of the High Court who –
(a) Having been served with any such summons, neglects or fails
without sufficient cause shown by him to appear or to produce any
document which he is so required to produce; or
(b) Whether summoned to attend or not, is present in Court and, being
required to give evidence or to produce any document then in his
possession, refuses, without sufficient cause shown by him, to be
sworn or to give evidence or to produce that document; or
(c) Having been sworn to give evidence in any proceedings, neglects
or fails without sufficient cause shown by him to appear at such
time as the Court directs for the purpose of giving further evidence
in the proceedings.
75 Commissioners to take evidence
The High Court may, in any civil or criminal proceedings where it appears
necessary for the purposes of justice, make an order for the examination on oath
before any officer of the Court or any other person or persons, and at any place
either in or out of Niue, of any witness or person and may order any deposition so
taken to be filed in the Court, and may empower any party to the proceedings to
give the deposition in evidence.
76 Evidence by affidavit sworn out of Niue
In any proceedings in the Court, an affidavit made out of Niue may, with
the leave of the Court, be received in evidence if made before a solicitor of the
High Court of New Zealand, or in any other manner by which the affidavit would
be admissible in civil proceedings in New Zealand.
77 Witnesses may be ordered out of Court
The High Court may at any time during any proceedings, whether civil or
criminal, order all witnesses other than the witness under examination to go and
remain outside the Court until required to give evidence; and any witness who
disobeys any such order shall be guilty of contempt of the High Court.
78 Affidavits in Niue
(1) Affidavits in the High Court may be sworn in Niue before –
(a) A Commissioner of the High Court;
(b) A Solicitor of the High Court of New Zealand;
(c) The Registrar of the High Court;
(d) A Postmaster;
(e) The Financial Secretary;
(f) [Repealed by 1974/64]
(g) A medical officer.
(2) The making of such affidavits shall be governed by the same rules as
are in force for the time being with respect to affidavits in the High Court of Niue.
79 Evidence by affidavit
In any civil proceedings in the High Court evidence may be taken either
orally or by affidavit, but in actions and other proceedings inter partes affidavits
shall not be admissible without the leave of the Court.
Niue Act 1966 1153
80 Right of audience in the High Court
In any proceedings in the High Court, whether civil or criminal, any party
may be represented either by a barrister or solicitor of the High Court of New
Zealand, or, with the leave of the Court, by any other agent, but any such leave
may be at any time withdrawn.
81 Costs
In any proceedings in the High Court, the Court shall have the power to
make such order for the payment of the costs of the proceedings by or to any
party.
82 Security for costs
(1) In any civil proceedings and at any stage of them, the High Court may
require a plaintiff or applicant resident out of the jurisdiction of the High Court to
deposit any sum of money as security for costs, and may stay the proceedings
pending the making of that deposit.
(2) When any sum has been so deposited as security for costs, it shall be
disposed of in such manner as the Court directs.
83 Court fees
The scale of costs and Court fees to be paid in all civil or criminal proceedings
in the High Court shall be as prescribed.
84 Minutes of judgments
(1) Every judgment of the High Court shall be deemed to be complete
when a minute of it has been made in the record books of the Court and signed by
a Judge of the Court.
(2) When necessary, the judgment may at any time after that be drawn up
under the seal of the Court.
85 Amendments
A Judge of the High Court may amend any minute or judgment of the
Court or other record of the Court, in order to give effect to the true intent of the
Court in respect of it or truly to record the course of any proceedings.
86 Rehearing of civil proceedings
(1) On application made at any time within 14 days after the date of any
judgment given by the High Court in its civil jurisdiction, the Court may rehear
the matter, and may on the rehearing either affirm, reverse, or vary the judgment.
(2) The Court may rehear the matter on an application made more than 14
days after the date of the judgment, if the Court is satisfied that the application
could not reasonably be made sooner.
87 Rehearing of criminal proceedings
(1) Where on the hearing of any information the accused has been
convicted, the High Court may grant a rehearing of the information, either as to
the whole matter or only as to the sentence, upon such terms as the Court thinks
fit.
(2) When a rehearing has been granted, the conviction or, as the case may be, the sentence only shall immediately cease to have effect.
1154 Niue Laws 2006 Vol 3
(3) If a rehearing is granted in any case where the accused was on conviction sentenced to a term of imprisonment that has not expired, but the hearing is not proceeded with immediately, the Court may remand the accused in custody or admit the accused to bail, with or without sureties until the date appointed for the rehearing.
(4) On any rehearing the Court shall have the same powers and shall follow
the same procedure as if it were the first hearing.
(5) If the defendant does not appear on the date set down for the
rehearing of any information, the Court may, without rehearing the case direct
that the original conviction or sentence, as the case may be, shall be restored.
Executions of Judgments
88 Writs of sale and possession
(1) Where by any judgment of the High Court in its civil jurisdiction any
person is ordered to pay any sum of money, the party to whom the money is
payable may cause a writ of sale to be issued.
(2) Where by any judgment of the High Court any person is ordered to
deliver possession of land or chattels, the party to whom the land or chattels are
ordered to be delivered may cause a writ of possession to be issued.
89 Effect of writ of possession
A writ of possession shall authorise the officer to whom it is addressed to
deliver to any party named in the writ, possession of any land or of any chattels
specified in the writ, and for that purpose to eject any other person from the land,
or to seize and take possession of any such chattels.
90 Effect of writ of sale
(1) A writ of sale shall authorise the officer to whom it is directed to seize
all the chattels (including money, cheques, bills of exchange, and other securities
for money) of the person against whom it is issued, except wearing apparel,
bedding, tools and implements of trade, not exceeding in the aggregate one
hundred dollars in value.
(2) All chattels so seized may, unless the judgment is sooner satisfied,
together with the costs of the execution, be sold or otherwise converted into money
by the Registrar, and the proceeds of the sale or conversion, after payment from
them of the costs of the execution, shall be applied in satisfaction of the judgment.
91 Issue of writs of sale or possession
Every writ of sale or writ of possession shall be issued by the Registrar
under the seal of the High Court, and shall be addressed to an officer of the Court
or to a constable.
92 Charging orders
(1) Any judgment of the High Court in its civil jurisdiction for the payment
of any sum of money may be enforced by a charging order made by the Court
against any real or personal property of the person by whom the money is payable
(including debts and other money due or accruing due to that person, but not
including the interest of a Niuean in any Niuean land).
(2) Any such charging order shall be made and shall have effect in manner
provided by rules of Court.
Niue Act 1966 1155
93 Stay of execution
The High Court may in any civil proceedings stay the execution of any
judgment for such term as the Court thinks fit.
94 Judgment summons
(1) When judgment for the payment of any debt, damages, or other sum
of money has been given by the High Court in its civil jurisdiction, the judgment
creditor may at any time after judgment file in Court an application for an order
under this section.
(2) A Judge or the Registrar of the Court may thereupon issue a summons
(a judgment summons) to the judgment debtor to show cause why an order should
not be made against him for the payment of the amount of the judgment.
(3) On the hearing of the application, the Court may make an order that
the judgment debtor pay to the judgment creditor the amount of the judgment
debt forthwith, or at such time or by such instalments as the Court thinks fit.
(4) Except where the judgment debtor fails to appear in Court in pursuance
of the judgment summons, no such order shall be made, unless the Court is satisfied
either –
(a) That the judgment debtor is of sufficient ability to pay the judgment debt under the terms of the order; or
(b) That the liability in respect of which judgment was given against
him was incurred by fraud; or
(c) That before or after the date of the judgment the judgment debtor
has made away with any property for the purpose of evading
payment of the liability.
(5) If any judgment debtor disobeys any order made against him under
this section, he shall be guilty of contempt of the High Court.
(6) Nothing in this section shall exclude any other lawful method of
executing any such judgment.
95 Enforcement of foreign judgments
(1) In this section –
“final decision” means a judgment from which there is no appeal in the
courts of the country where the judgment was originally made or, when
the judgment is executory, because the time for appealing the judgment
has expired;
“judgment” means a final decision of a court other than a court of Niue, in
criminal or civil proceedings, for the payment of a sum of money as
compensation or damages, and includes arbitral awards and
maintenance orders but excludes sums payable in respect of a fine or
other penalty;
“judgment creditor” means the person in whose favour a judgment was
given and any person who has rights under a judgment.
(2) A judgment may be enforceable in Niue if –
(i) the foreign court had jurisdiction to decide the matter; and
(ii) it is for a definite sum of money; and
(iii) enforcement would not be contrary to the public policy of Niue;
and
(iv) a certified copy of the judgment has been filed for registration
in the High Court within 2 years from the date on which it was
made or became executory.
1156 Niue Laws 2006 Vol 3
(3) After receiving an application to register a judgment, the High Court shall issue a summons –
(i) calling upon the person against whom the judgment was obtained to show within 30 days why execution should not issue on the judgment; and
(ii) giving notice that in default of appearance an order for
execution of the judgment will be issued.
(4) In default of appearance within 30 days, or if the person served with
such summons fails to show sufficient cause against it, the judgment will be
registered.
(5) No order of registration shall be issued where a judgment creditor has
shown that the judgment –
(i) has been wholly satisfied; or
(ii) could not be enforced in the courts of the country where the
judgment was originally made.
(6) Where a judgment has been partially satisfied, it shall be registered
only in respect of a sum remaining unpaid under it.
(7) After registration the judgment may be enforced in the same manner
as if it were a judgment originally given in the High Court on the date of
registration.
(8) No foreign judgment shall be enforced in Niue other than by way of
registration under this section.
(9) A judgment shall be recognised by a court of Niue as conclusive between
the parties in a case founded on the same cause of action and as a defence or
counter-claim if it satisfies subsection (2) (i) (ii) and (iii).
Absconding Debtors
96 Order of arrest of absconding debtor
Where in any action in the High Court for the recovery of any debt, damages,
or other sum of money the plaintiff proves to the satisfaction of the Court, at any
time before final judgment, that he has a good cause of action against the defendant
to the amount of 0.5 penalty units or upwards, and that there is probable cause for
believing that the defendant is about to leave Niue unless he is apprehended, and
that his absence from Niue will materially prejudice the plaintiff in the prosecution
of his action, the Court may order the defendant to be arrested and imprisoned
for a period not exceeding 3 months unless and until he sooner give security to
the satisfaction of the Court that he will not leave Niue without the leave of the
Court.
96A Commissioner and Justices’ authority
Any power conferred by this Act on the Court to make an order under
section 96 may be exercised by a Commissioner of the High Court or any 2 Justices
of the Peace if when the power is exercised there is not present in Niue a Judge
who is able to exercise it.
97 Security to be given
The security to be so given shall, as the Court directs, be either the payment
into Court of a sum not exceeding the amount claimed in the action or a bond
executed by the defendant with one or 2 sureties in favour of Her Majesty in the
like amount.
Niue Act 1966 1157
98 Enforcement of security
If after such security has been given the defendant leaves Niue without the
leave of the Court, all money so paid into Court or recovered in pursuance of the
bond shall become available as the Court directs for the satisfaction of any sum
recovered in the action.
99 Arrest in actions for penalties
Where the action is for a penalty at the suit of the Crown, it shall not be
necessary to prove that the absence of the defendant as aforesaid will materially
prejudice the Crown in the prosecution of the action, and the security to be given
shall be security that any sum recovered against the defendant in the action will
be paid or that the defendant will be rendered to prison.
100 Enforcement of security in actions for penalties
If, after such security has been given, any sum recovered in the action
remains unpaid and the defendant is not rendered to prison, all money so paid
into Court or recovered in pursuance of the bond shall become available as the
Court directs for the satisfaction of the sum recovered in the action.
Contempt of the High Court
101 Contempt of Court defined
Every person is guilty of contempt of the High Court who –
(a) Disobeys any judgment or order of that Court, or of any Judge,
otherwise than by making default in the payment of a sum of money
(other than a penalty) or compensation payable under the judgment
or order; or
(b) Uses any abusive, insulting, offensive, or threatening words or
behaviour in the presence or hearing of the Court; or
(c) Assaults, resists, or obstructs, or incites any other person to assault,
resist, or obstruct, any constable or officer of the Court in serving
any process of the Court, or executing any warrant of the Court or
of a Judge or executing any judgment or order of the Court or of a
Judge; or
(d) By the words or behaviour obstructs in any manner the proper and
orderly administration of justice in the Court; or
(e) Does any other thing which elsewhere in this Act or in any other
Act is declared to be a contempt of the High Court; or
(f) Aids, abets, counsels, procures, or incites any other person to commit
contempt of the High Court.
102 Penalty for contempt
Every person who commits contempt of the High Court is liable to
imprisonment for a term not exceeding 6 months or a fine not exceeding 1 penalty
unit.
103 Jurisdiction in contempt
The offence of contempt of the High Court shall be punishable by the High
Court either –
(a) In the ordinary course of the criminal jurisdiction of that Court; or
(b) Under section 104.
1158 Niue Laws 2006 Vol 3
104 Contempt in the face of the Court
(1) If the contempt is committed in the presence or hearing of the Court,
any Judge then and there sitting in Court may, without order or warrant, direct
any constable, officer of the Court, or other person to arrest the person so guilty of
contempt and to bring him before the Court.
(2) The Court may thereupon, after giving the person so arrested a
reasonable opportunity of being heard in his defence, either commit him to prison
for a term not exceeding 6 months or order him to pay a fine not exceeding 1
penalty unit.
105 Discharge of persons in contempt
A person imprisoned for contempt, or for default in payment of a fine
imposed upon him for contempt, may be at any time discharged, and any fine so
imposed may be at any time remitted in whole or in part by order of the Court.
106 [Repealed by 2004/270]
PART 4
THE HIGH COURT
107 Declarations
A person may apply to the High Court for a declaration where the
applicant –
(i) has done or desires to do an act the validity, legality, or effect of which depends on the construction or validity of an enactment or of any document; or
(ii) claims to have acquired any rights under any such enactment or document, or in any other manner to be interested in its construction or validity; or
(iii) wishes to have a formal statement as to the existence or non
existence of a marriage or the validity of a dissolution of
marriage.
108 [Repealed by 2004/270]
109 Cases stated
(1) The High Court may in any proceedings before it, either on the
application of a party or of its own motion, state a case on a question of law for
determination by the Court of Appeal.
(2) In the order of the Court of Appeal which determines the case stated,
the Court of Appeal may fix the costs of the argument and determination of the
case stated.
110 [Repealed by 2004/270]
Appeals from the High Court
111-112 [Repealed by 1974/64]
113 Transmission of record
Where an appeal is made to the Court of Appeal against a final judgment
of the High Court, a copy of the record of the proceedings in which the judgment
appealed against was given (including the reasons for the judgment, and, where
necessary, a statement of the facts or of the evidence) shall be prepared by the
appellant and transmitted to the Registrar of the Court of Appeal.
Niue Act 1966 1159
114 Dismissal of appeal for non-prosecution
If the appellant does not prosecute his appeal with due diligence, the
respondent may apply to the High Court for an order dismissing the appeal for
non-prosecution; and, if such an order is made, the costs of the appeal and the
security entered into by the appellant shall be dealt with in such manner as that
Court may direct.
115 Procedure on appeal
The procedure on the hearing of any such appeal and in all matters
incidental to any such appeal, whether in the High Court or in the Court of Appeal
shall, subject to this Act, be determined by the rules of the High Court or the
Court of Appeal and in default of such rules, or so far as they do not extend, shall
be determined in such manner as the Court thinks fit.
116 [Repealed by 1974/64]
117 Powers of Court of Appeal
(1) On any appeal from the High Court, the Court of Appeal may affirm,
reverse, or vary the judgment appealed from, or may order a new trial, or may
make any such order with respect to the appeal as the Court of Appeal thinks fit,
and may award such costs as it thinks fit to or against any party to the appeal.
(2) Without limiting the general powers conferred by subsection (1), the
Court of Appeal on any appeal against sentence, if it thinks that a different sentence
should have been passed, shall quash the sentence passed and pass such other
sentence warranted by law (whether more or less severe) in substitution therefore
as the Court thinks ought to have been passed, and in any other case shall dismiss
the appeal.
118 Evidence on appeal
Every such appeal shall, so far as it relates to any question of fact, be
determined by the Court of Appeal by reference to the evidence heard at the trial
as certified to the Court of Appeal under the seal of the High Court, and no further
evidence shall, without the leave of the Court of Appeal be heard or admitted.
119 Stay of execution
An appeal to the Court of Appeal shall not operate as a stay of execution,
unless the High Court or the Court of Appeal otherwise orders.
120 Release of appellant from custody
(1) When an appeal is made to the Court of Appeal from any conviction in
the High Court, the High Court may release the appellant from custody on bail
pending the determination of the appeal.
(2) Any person so released on bail may be at any time, and for any reason
which the High Court thinks sufficient, arrested by warrant and committed to
prison, there to undergo his sentence.
(3) Any period during which an appellant has been so at large on bail
shall not be computed as part of the term of imprisonment to which he has been
sentenced.
1160 Niue Laws 2006 Vol 3
121 Appeal not to be allowed for irregularities
No judgment of the High Court shall, on appeal to the Court of Appeal, be
set aside on the ground of any error or irregularity in the proceedings of the High
Court, or on the ground of any defect of form or substance in the judgment, unless
the Court of Appeal is of opinion that the proceedings of the High Court were not
in conformity with natural justice or that a substantial miscarriage of justice has
taken place.
122 Right of audience on appeal
On every case stated for the Court of Appeal and in every appeal to that
Court, the parties may either appear in person or be represented by a person who
has right of audience in the High Court, or may submit their arguments to the
Court of Appeal in writing.
123 Transmission of order of Court of Appeal
The determination of the Court of Appeal on any appeal from the High
Court shall be entered in the High Court in conformity with that determination,
or such other proceedings by way of a new trial or otherwise shall be taken in the
High Court as are required by the determination.
124 [Repealed by 1974/64]
125 [Repealed by 2004/270]
Enforcement in Niue of Judgments of New Zealand Courts
126 Judgments of High Court or a District Court in New Zealand may be
enforced by the High Court
(1) Any person in whose favour any judgment whereby any sum of money
is made payable has been obtained in the High Court of New Zealand or in a
District Court in New Zealand in civil proceedings may cause a memorial of it,
authenticated by the seal of the High Court of New Zealand or of the District
Court, as the case may be, to be filed in the High Court of Niue.
(2) Judicial notice may be taken by the High Court of Niue of the seal of
the New Zealand Court so affixed to any such memorial.
(3) Every such memorial shall set forth the names and additions of the
parties to the proceedings in which the judgment was given, the form or nature of
the proceedings, the date on which the judgment was given, and the amount
payable under it.
(4) Every such memorial being so filed shall thenceforth be a record of the
judgment, and execution may issue on it with the leave of the High Court in the
same manner as if the like judgment had been given by the High Court, subject to
such terms and conditions as the High Court may impose.
(5) Leave to issue such execution may be given by the High Court on the
application of the party by whom the memorial was filed, and either ex parte or on
notice to the party against whom execution is to be issued, as the High Court
thinks fit.
Niue Act 1966 1161
127 Enforcement of judgments of the High Court of New Zealand by High
Court by way of proceedings for contempt
(1) When by any judgment of the High Court of New Zealand any person
has been ordered to do or abstain from doing any act in Niue other than the
payment of money, the High Court of New Zealand may then or at any time
thereafter direct a memorial of the judgment under the seal of the court to be filed
in the High Court of Niue.
(2) On the filing of such a memorial, any disobedience to the judgment,
whether before or after the filing of the memorial, shall be deemed to be a contempt
of the High Court of Niue.
128 [Repealed by 2004/270]
129 Seditious offences
PART 5
CRIMINAL OFFENCES
(1) A seditious intention is an intention to excite disaffection against Her Majesty, or against the Parliament or Government of New Zealand, or against the Government of Niue, or to excite such hostility or ill will between different classes of the inhabitants of Niue as may be injurious to the public welfare, or to incite, encourage, or procure lawlessness, violence, or disorder in Niue, or to procure otherwise than by lawful means the alteration of any matter affecting the laws, government, or constitution of Niue.
(2) No one shall be deemed to have a seditious intention only because he
intends in good faith –
(a) To show that Her Majesty has been misled or mistaken in her
measures; or
(b) To point out errors or defects in the Parliament or Government of
New Zealand or in the Government of Niue; or to incite the
inhabitants of Niue to attempt to procure by lawful means the
alteration of any matter affecting the laws, government, or
constitution of Niue; or
(c) To point out, with a view to their removal, matters producing or
having a tendency to produce hostility or ill will between different
classes of the inhabitants of Niue.
(3) Seditious words are words expressive of a seditious intention.
(4) A seditious libel is a libel expressive of a seditious intention.
(5) A seditious conspiracy is an agreement between 2 or more persons to
carry into execution a seditious intention.
130 Punishment of seditious offences
Every person is liable to imprisonment for a term not exceeding 2 years
who speaks any seditious words, or publishes a seditious libel, or is a party to a
seditious conspiracy.
131 Homicide
Homicide is the killing of a human being by another, directly or indirectly,
by any means whatsoever.
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132 Killing of a child
(1) A child becomes a human being within the meaning of this Act when it
has completely proceeded in a living state from the body of its mother, whether it
has breathed or not, whether it has an independent circulation or not, and whether
the navel string is severed or not.
(2) The killing of such a child is homicide if it dies in consequence of injuries
received before, during, or after birth.
133 Culpable homicide
(1) Homicide may be either culpable or not culpable.
(2) Homicide is culpable when it consists in the killing of any person –
(a) By an unlawful act; or
(b) By an omission without lawful excuse to perform or observe any
legal duty; or
(c) By both combined; or
(d) By causing that person by threats or fear of violence, or by deception,
to do an act which causes his death; or
(e) By wilfully frightening that person, if he is a child under the age of
16 years or is sick or infirm.
(3) Culpable homicide is either murder or manslaughter.
(4) Homicide that is not culpable is not an offence.
134 Murder
Culpable homicide is murder in each of the following cases:
(a) If the offender means to cause the death of the person killed;
(b) If the offender means to cause to the person killed any bodily injury
that is known to the offender to be likely to cause death, and is
reckless whether death ensues or not;
(c) If the offender means to cause death, or, being so reckless as
aforesaid, means to cause such bodily injury as aforesaid to one
person, and by accident or mistake kills another person, though he
does not mean to hurt the person killed;
(d) If the offender for any unlawful object does an act that he knows to
be likely to cause death, and thereby kills any person though he
may have desired that his object should be effected without hurting
anyone.
135 Further definition of murder
(1) Culpable homicide is also murder in each of the following cases,
whether the offender means or does not mean death to ensue, or knows or does
not know that death is likely to ensue –
(a) If he means to inflict grievous bodily injury for the purpose of
facilitating the commission of any of the offences mentioned in
subsection (2) or the flight of the offender upon the commission or
attempted commission of it, or for the purpose of resisting lawful
apprehension in respect of any other offence whatsoever, and death
ensues from such injury;
(b) If he administers any stupefying or overpowering thing for any of
the purposes aforesaid, and death ensues from the effects of it;
(c) If he by any means wilfully stops the breath of any person for any
of the purposes aforesaid, and death ensues from such stopping of
the breath.
Niue Act 1966 1163
(2) The offences referred to in subsection (1) are those within the meaning of the following provisions –
(a) Section 134 (murder);
(b) Section 158 (resisting a constable in the execution of his duty or any
person acting in aid of any constable;
(c) Section 159 (abduction of girl under 15);
(d) Section 162 (rape);
(e) Sections 184 to 186 (escape or rescue from prison or lawful custody);
(f) Section 195 (robbery);
(g) Section 204 (burglary);
(h) Section 212 (arson).
136 Provocation
(1) Culpable homicide that would otherwise be murder may be reduced
to manslaughter if the person who caused the death did so under provocation.
(2) Anything done or said may be provocation if –
(a) In the circumstances of the case it was sufficient to deprive a person
having the power of self-control of an ordinary person, but
otherwise having the characteristics of the person charged, of the
power of self-control; and
(b) It did in fact deprive the person charged of the power of self-control
and thereby induced him to commit the act of homicide.
(3) Whether there is any evidence of provocation is a question of law.
(4) Whether, if there is evidence of provocation, the provocation was
sufficient as aforesaid, and whether it did in fact deprive the person charged of
the power of self-control and thereby induced him to commit the act of homicide,
are questions of fact.
(5) No one shall be held to give provocation to another by lawfully
exercising any power conferred by law, or by doing anything which the person
charged incited him to do in order to provide the person charged with an excuse
for killing or doing bodily harm to any person.
(6) This section shall apply in any case where the provocation was given
by the person killed, and also in any case where the person charged, under
provocation given by one person, by accident or mistake killed another person.
(7) The fact that by virtue of this section one party to a homicide has not
been or is not liable to be convicted of murder shall not affect the question whether
the homicide amounted to murder in the case of any other party to it.
137 Illegal arrest may be evidence of provocation
An arrest shall not necessarily reduce the offence from murder to
manslaughter because the arrest was illegal, but if the illegality was known to the
person charged it may be evidence of provocation.
138 Punishment of murder
Every one who commits murder shall upon conviction of it be sentenced to
imprisonment for life.
139 Manslaughter
Culpable homicide not amounting to murder is manslaughter.
1164 Niue Laws 2006 Vol 3
140 Punishment of manslaughter
Every one who commits manslaughter is liable to imprisonment for a term
not exceeding 14 years.
141 Omissions dangerous to life
Every one who undertakes, whether by a legally binding contract or
otherwise, to do any act the omission of which is or may be dangerous to life is
under a legal duty to do that act, and is criminally responsible for the consequences
of omitting without lawful excuse to discharge that duty.
142 Duty to provide the necessaries of life
(1) Everyone who has charge of any other person unable, by reason of
detention, age, sickness, insanity, or any other cause, to withdraw himself from
such charge, and unable to provide himself with the necessaries of life, is (whether
such charge is undertaken by him under any contract or is imposed upon him by
law or by reason of his unlawful act or otherwise howsoever) under a legal duty
to supply that person with the necessaries of life, and is criminally responsible for
omitting, without lawful excuse to perform such duty if the death of that person
is caused, or if his life is endangered or his health permanently injured, by such
omission.
(2) Every one is liable to imprisonment for a term not exceeding 7 years
who, without lawful excuse, neglects the duty specified in this section so that the
life of the person under his charge is endangered or his health permanently injured
by such neglect.
143 Duty of parent or guardian to provide necessaries
(1) Every one who as a parent or person in place of a parent is under a
legal duty to provide necessaries for any child under the age of 16 years, being a
child in his actual custody, is criminally responsible for omitting without lawful
excuse to do so, whether the child is helpless or not, if the death of the child is
caused, or if his life is endangered or his health permanently injured, by such
omission.
(2) Every one is liable to imprisonment for a term not exceeding 7 years
who, without lawful excuse, neglects the duty specified in this section so that the
life of the child is endangered or his health permanently injured by such neglect.
144 Liability for dangerous things
Every one who has in his charge or under his control anything whatever,
whether animate or inanimate, or who erects, makes, or maintains anything
whatever, which in the absence of precaution or care may endanger human life is
under a legal duty to take reasonable precautions against and to use reasonable
care to avoid such danger, and is criminally responsible for the consequences of
omitting without lawful excuse to perform that duty.
145 Hastening death
Every one who hastens the death of any person from any disease or disorder
from which he is already suffering shall be deemed to have caused the death of
that person.
146 Indirect cause of death
Every one whose act or omission results in the death of any person shall be
deemed to have caused his death, although the immediate cause of death is the
act or omission of some other person or some other independent intervening event.
Niue Act 1966 1165
147 Attempted murder
Every one who attempts to commit murder is liable to imprisonment for a
term not exceeding 14 years.
148 Conspiracy and inciting to murder
Every one is liable to imprisonment for a term not exceeding 10 years, who –
(a) Conspires with any person to murder any person; or
(b) Incites any person to commit murder.
149 Counselling suicide
Every one is liable to imprisonment for a term not exceeding 14 years who
counsels or procures any person to commit suicide, if that person actually commits
suicide in consequence, or who aids or abets any person in the commission of
suicide.
150 Concealment of birth
Every one is liable to imprisonment for a term not exceeding 2 years who
disposes of the dead body of any child in any manner with intent to conceal the
fact that its mother was delivered of it, whether the child died before, or during,
or after birth.
151 Grievous bodily harm
Every one is liable to imprisonment for a term not exceeding 7 years who
wilfully and without lawful justification causes grievous bodily harm to any
person.
152 Actual bodily harm
Every one is liable to imprisonment for a term not exceeding 2 years who
wilfully and without lawful justification causes actual bodily harm to any person.
153 Omissions resulting in bodily harm
Every one is liable to imprisonment for a term not exceeding 2 years who
by any act or omission causes bodily harm to any person under such circumstances
that, if death had been caused, he would have been guilty of manslaughter.
154 Intentionally endangering persons on aerodromes
Every one is liable to imprisonment for a term not exceeding 14 years who,
with intent to injure or endanger the safety of any person on any aerodrome or in
any aircraft –
(a) Places anything upon or across any aerodrome; or
(b) Does any act likely to interfere with, injure, endanger, or obstructs
any aircraft; or
(c) Shoots or throws anything at any person in any aircraft or at, into,
or upon, or causes anything to come in contact with, any aircraft;
or
(d) Does anything whatever to any part of any aerodrome or to any
machinery or signal belonging to or near to any aerodrome or to
any aircraft on, or about to land on or take off from, any aerodrome;
or
(e) Deals in any way with any signal or light on or near to any
aerodrome, or makes or shows any false signal or light or makes
any sign whatever on or near to any aerodrome; or
(f) Wilfully omits to do any act which it is his duty to do.
1166 Niue Laws 2006 Vol 3
155 Wantonly endangering persons on aerodromes
Every one is liable to imprisonment for a term not exceeding 2 years who
unlawfully and wilfully, in a manner likely to injure or endanger the safety of any
person on any aerodrome or in any aircraft, –
(a) By any act, omission, or neglect endangers or obstructs any aircraft;
or
(b) Does any act likely to interfere with or to cause injury to any aircraft;
or
(c) Shoots or throws anything at any person in any aircraft or at, into,
or upon, or causes anything to come in contact with, any aircraft;
or
(d) Does anything whatever to any part of any aerodrome or to any
machinery or signal belonging to or near to any aerodrome or to
any aircraft on, or about to land on or take off from, any aerodrome;
or
(e) Deals in any way with any signal or light on or near to any
aerodrome, or makes or shows any false signal or light or makes
any sign whatever on or near to any aerodrome; or
(f) By any culpable neglect of duty endangers the safety of any person
conveyed in any aircraft.
156 Indecent assault
Every one who indecently assaults any woman or girl is liable to
imprisonment for a term not exceeding 5 years.
157 Assault
Every one who commits an assault on any person is liable to imprisonment
for a term not exceeding one year.
157A Cruelty to a child
Every one is liable to imprisonment for a term not exceeding 5 years who,
having the custody, control, or charge of a child under the age of 16 years, wilfully
illtreats or wilfully neglects the child, or wilfully permits the child to be illtreated
or neglected, in a manner likely to cause the child unnecessary suffering, actual
bodily harm, injury to health, or mental disorder, or to incur any other unnecessary
physical or mental disability.
158 Resisting constable in execution of his duty
Every one is liable to imprisonment for a term not exceeding 6 months or
to a fine not exceeding 0.5 penalty units who resists or assaults or wilfully obstructs,
or incites or encourages any person to resist or assault or obstruct, any constable
in the execution of his duty, or any person acting in aid of any constable.
159 Abduction of girl under 15
(1) Every one is liable to imprisonment for a term not exceeding 2 years
who, without the consent of the father or mother or other person having lawful
charge of an unmarried girl under the age of 15 years, or without other lawful
authority (the proof of which shall lie on him), takes that girl or causes her to be
taken out of the possession of her father or mother or such other person as aforesaid.
(2) It shall be no defence in a prosecution for an offence against this section
that the girl was taken with her own consent, or at her own suggestion, or that the
offender believed the girl to be of or over the age of 15 years.
Niue Act 1966 1167
(3) No proceedings for an offence against this section shall be taken in the event of the subsequent intermarriage of the offender and the girl in respect of whom the offence has been committed.
160 Abduction of children
(1) Every one is liable to imprisonment for a term not exceeding 2 years
who, with intent to deprive any parent or guardian or other person having the
lawful charge of any child under the age of 14 years of the possession of that
child, unlawfully –
(a) Takes or entices away or detains the child; or
(b) Receives the child knowing it to have been so dealt with.
(2) Nothing in this section shall extend to any one who gets possession of
any child claiming in good faith a right to the possession of the child.
161 Sexual intercourse
For the purposes of this Part, sexual intercourse is complete upon
penetration; and there shall be no presumption of law that any person is by reason
of his age incapable of such intercourse.
162 Rape
(1) Rape is the act of a male person having sexual intercourse with a woman
or girl –
(a) Without her consent; or
(b) With consent extorted by threats or fear of bodily harm; or
(c) With consent obtained by personating her husband; or
(d) With consent obtained by false and fraudulent representations as
to the nature and quality of the act.
(2) Every one who commits rape is liable to imprisonment for a term not
exceeding 14 years.
(3) Every one is liable to imprisonment for a term not exceeding 10 years
who attempts to commit rape or who assaults any person with intent to commit
rape.
(4) Notwithstanding anything in subsection (1), no man shall be convicted of rape or attempting to commit rape or assaulting with intent to commit rape in respect of his wife, unless at the time of the intercourse or attempt a separation order granted in Niue or New Zealand was in force in respect of the marriage.
163 Sexual intercourse or indecency with girl under 12
(1) Every one is liable to imprisonment for a term not exceeding 10 years
who –
(a) Has sexual intercourse with any girl under the age of 12 years; or
(b) Attempts to have sexual intercourse with a girl under the age of 12
years; or
(c) Indecently assaults any girl under the age of 12 years; or
(d) Being a male, does any indecent act with or upon any girl under
the age of 12 years; or
(e) Being a male, induces or permits any girl under the age of 12 years
to do any indecent act with or upon him.
(2) It is no defence to a charge under this section that the girl consented, or
that the person charged believed that she was of or over the age of 12 years.
(3) The girl shall not be charged as a party to an offence committed upon
or with her against this section.
1168 Niue Laws 2006 Vol 3
164 Sexual intercourse or indecency with girl between 12 and 15
(1) Every one is liable to imprisonment for a term not exceeding 3 years
who –
(a) Has or attempts to have sexual intercourse with any girl of or over the age of 12 years and under the age of 15 years, not being his wife; or
(b) Indecently assaults any such girl; or
(c) Being a male, does any indecent act with or upon any such girl;
(d) Being a male, induces or permits any such girl to do any indecent
act with or upon him.
(2) It is no defence to a charge under this section that the girl consented, or
that the person charged believed that the girl was of or over the age of 15 years. (3) The girl shall not be charged as a party to an offence committed upon
or with her against this section.
165 Sexual intercourse with woman or girl who is an idiot or imbecile or of unsound mind
Every one is liable to imprisonment for a term not exceeding 2 years who has or attempts to have sexual intercourse with any woman or girl who is an idiot or an imbecile or of unsound mind, if he knows or has good reason to believe that she is an idiot or an imbecile or of unsound mind.
166 Procuring miscarriage of woman or girl
Every one is liable to imprisonment for a term not exceeding 2 years who,
with intent to procure the miscarrriage of any woman or girl, unlawfully
administers to or causes to be taken by her any poison or any drug or other noxious
thing, or unlawfully uses any instrument or other means whatsoever with the like
intent.
167 Act of woman or girl procuring her own miscarriage
Every woman or girl is liable to imprisonment for a term not exceeding one year
who, whether with child or not, unlawfully administers to herself or permits to be
administered to her any poison or any drug or other noxious thing, or unlawfully
uses on herself or permits to be used on her any instrument or other means
whatsoever, with intent to procure miscarriage.
168 Supplying means of miscarriage
Every one is liable to imprisonment for a term not exceeding 2 years who
unlawfully supplies or procures any poison or any drug or other noxious thing,
or any instrument or thing whatsoever, knowing that it is intended to be unlawfully
used with intent to procure the miscarriage of any woman or girl.
169 Bigamy
(1) Every one who commits bigamy is liable to imprisonment for a term
not exceeding 5 years.
(2) Bigamy is –
(a) The act of a person who being married goes through a valid form
of marriage with any other person; or
(b) The act of a person who goes through a valid form of marriage
with any person whom he or she knows to be married.
(3) The fact that the parties would, if unmarried, have been incompetent
to contract marriage is not a defence upon a prosecution for bigamy.
Niue Act 1966 1169
(4) Every form of marriage shall for the purposes of this section be deemed valid, notwithstanding any act or default of the person charged with bigamy, if it is otherwise a valid form.
170 Buggery
(1) Every one is liable to imprisonment for 10 years who commits buggery
either with a human being or with any other living creature.
(2) This offence is complete upon penetration.
171 Attempted buggery and indecent assaults on males
(1) Every one is liable to imprisonment for 5 years who –
(a) Attempts to commit buggery; or
(b) Assaults any person with intent to commit buggery; or
(c) Being a male, indecently assaults any other male person.
(2) It is no defence to a charge of indecent assault on a male person of any
age that he consented to the act of indecency.
172 Incest
(1) Incest means sexual intercourse between –
(a) Parent and child; or
(b) Brother and sister, whether of the whole blood or of the half blood,
and whether the relationship is traced through lawful wedlock or
not; or
(c) Grandparent and grandchild, whether the relationship is traced
through lawful wedlock or not –
where the person charged knows of the relationship between the parties.
(2) Every one of or over the age of 15 years who commits incest is liable to
imprisonment for a term not exceeding 7 years.
173 Indecent acts
(1) Every one is liable to imprisonment for a term not exceeding 6 months
who wilfully does any indecent act in any public place or within the view of any
person being in any public place.
(2) It is a defence to a charge under subsection (1) if the person charged
proves that he had reasonable grounds for believing that he would not be observed.
(3) Every one is liable to imprisonment for a term not exceeding 6 months
who with intent to insult or offend any person does any indecent act in any place.
174 Indecent documents
Every one is liable to imprisonment for a term not exceeding 6 months
who, knowingly and without lawful justification or excuse –
(a) Sells, exposes for sale, or otherwise distributes to the public any
obscene or indecent book, picture, photograph, document, film,
video-tape, or other object tending to corrupt morals; or
(b) Publicly exhibits any obscene or indecent show tending to corrupt
morals.
1170 Niue Laws 2006 Vol 3
175 Brothels
(1) Every one who keeps a brothel is liable to imprisonment for a term not
exceeding 6 months.
(2) A brothel is a house, room, or place of any kind whatever kept or used
for purposes of prostitution.
(3) Any one who acts as a person having the management, care, or control
of a brothel shall be deemed to be a keeper thereof, whether he is in fact a keeper
of it or not.
(4) The owner or occupier of any house, room, or place who knowingly
permits it to be used as a brothel shall be deemed to be a keeper of it, whether he
is in fact a keeper of it or not.
176 Gaming houses
(1) Every one who keeps a gaming house is liable to imprisonment for a
term not exceeding 6 months.
(2) A gaming house is a house, room, or place of any kind whatever kept
or used as a place of resort for gambling.
(3) “Gambling” means playing for money or other valuable thing at any
game of chance, or playing for excessive stakes or otherwise to the injury of public
morals at any game of mixed chance and skill; and includes any form of unlawful
gaming.
(4) Any one who acts as a person having the management, care, or control
of a gaming house shall be deemed to be a keeper of it, whether he is in fact a
keeper of it or not.
(6) The owner or occupier of any house, room, or place who knowingly
permits it to be used as a gaming house shall be deemed to be a keeper of it whether
he is in fact a keeper of it or not.
176A Powers to permit gambling
Notwithstanding section 176 Cabinet may make regulations to permit
certain gambling activities to be carried out in Niue, within certain guidelines
and to prescribe fees and offences in respect of such activities.
177 Riot
(1) Every one who takes part in a riot is liable to imprisonment for a term
not exceeding 2 years.
(2) A riot is an assembly of 3 or more persons who, with intent to carry out
any common purpose, disturb the peace tumultuously.
178 Forcible entry
Every one is liable to imprisonment for a term not exceeding 6 months
who, by force or threats of force, enters on land then in the actual and peaceable
possession of another for the purpose of taking possession of it, whether he who
so enters is entitled to the possession of it or not.
179 Affrays
(1) Every one who, without lawful justification or excuse, takes part in an
affray is liable to imprisonment for a term not exceeding one year.
(2) An affray is the act of fighting in a public highway or in any other
public place.
Niue Act 1966 1171
CRIMES AFFECTING THE ADMINISTRATION OF LAW AND JUSTICE
Bribery and Corruption
180 Interpretation
In this Part
“bribe” means any money, valuable consideration, office, or employment,
or any benefit, whether direct or indirect;
“judicial officer” means a Judge or Commissioner of any court, Coroner,
or Justice of the Peace, or any other person holding any judicial office,
or any person who is a member of any tribunal authorised by law to
take evidence on oath;
“law enforcement officer” means any constable, or any person employed
in the detection or prosecution or punishment of offenders;
“official” means any person in the service of Her Majesty in Niue (whether
that service is honorary or not, and whether it is within or outside of
Niue), or any member or employee of any local authority or public
body.
180A Judicial corruption
(1) Every judicial officer is liable to imprisonment for a term not exceeding
14 years who corruptly accepts or obtains, or agrees or offers to accept or attempts
to obtain, any bribe for himself or any other person in respect of any act done or
omitted, or to be done or omitted, by him in his judicial capacity.
(2) Every judicial officer, and every Registrar or Deputy Registrar of any
court is liable to imprisonment for a term not exceeding 7 years who corruptly
accepts or obtains, or agrees or offers to accept or attempts to obtain any bribe for
himself or any other person in respect of any act done or omitted, or to be done or
omitted, by him in his official capacity, not being an act or omission to which
subsection (1) applies.
180B Bribery of judicial officer
(1) Every one is liable to imprisonment for a term not exceeding 7 years
who corruptly gives or offers or agrees to give any bribe to any person with intent
to influence any judicial officer in respect of any act or omission by him in his
judicial capacity.
(2) Every one is liable to imprisonment for a term not exceeding 5 years
who corruptly gives or offers or agrees to give any bribe to any person with intent
to influence any judicial officer or any Registrar or Deputy Registrar of any court
in respect of any act or omission by him in his official capacity, not being an act or
omission to which subsection (1) applies.
180C Corruption and bribery of Minister
(1) Every Minister or member of the executive authority is liable to
imprisonment for a term not exceeding 14 years who corruptly accepts or obtains,
or agrees or offers to accept or attempts to obtain, any bribe for himself or any
other person in respect of any act done or omitted, or to be done or omitted, by
him in his capacity as a Minister or member of the executive authority.
(2) Every one is liable to imprisonment for a term not exceeding 7 years
who corruptly gives or offers or agrees to give any bribe to any person with intent
to influence any Minister or member of the executive authority in respect of any
act or omission by him in his capacity as a Minister or member of the executive
authority.
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(3) No one shall be prosecuted for an offence against this section without the leave of a Judge or Commissioner of the Court.
180D Corruption and bribery of member of Assembly
(1) Every member of the Assembly is liable to imprisonment for a term
not exceeding 7 years who corruptly accepts or obtains, or agrees or offers to accept
or attempts to obtain, any bribe for himself or any other person in respect of any
act done or omitted, or to be done or omitted, by him in his capacity as a member
of the Assembly.
(2) Every one is liable to imprisonment for a term not exceeding 3 years
who corruptly gives or offers or agrees to give any bribe to any person with intent
to influence any member of the Assembly in respect of any act or omission by him
in his capacity as a member of the Assembly.
(3) No one shall be prosecuted for an offence against this section without
the leave of a Judge or Commissioner of the Court.
180E Corruption and bribery of law enforcement officer
(1) Every law enforcement officer is liable to imprisonment for a term not
exceeding 7 years who corruptly accepts or obtains, or agrees or offers to accept
or attempts to obtain, any bribe for himself or any other person in respect of any
act done or omitted, or to be done or omitted, by him in his official capacity.
(2) Every one is liable to imprisonment for a term not exceeding 3 years
who corruptly gives or offers or agrees to give any bribe to any person with intent
to influence any law enforcement officer in respect of any act or omission by him
in his official capacity.
180F Corruption and bribery of official
(1) Every official is liable to imprisonment for a term not exceeding 7 years
who, whether within Niue or elsewhere, corruptly accepts or obtains, or agrees or
offers to accept or attempts to obtain, any bribe for himself or any other person in
respect of any act done or omitted, or to be done or omitted, by him in his official
capacity.
(2) Every one is liable to imprisonment for a term not exceeding 3 years
who corruptly gives or offers or agrees to give any bribe to any person with intent
to influence any official in respect of any act or omission by him in his official
capacity.
180G Corrupt use of official information
Every official is liable to imprisonment for a term not exceeding 7 years
who, whether within Niue or elsewhere, corruptly uses or discloses any
information, acquired by him in his official capacity, to obtain, directly or indirectly,
an advantage or pecuniary gain for himself or any other person.
180H Restrictions on prosecutions
No one shall be prosecuted for an offence against sections 180A, 180B, 180E,
180F and 180G without the leave of the Minister of Justice, who before giving
leave may make such inquiries as he thinks fit.
Niue Act 1966 1173
181 Perjury
(1) Perjury is an assertion as to a matter of fact, opinion, belief, or knowledge
made by a witness in a judicial proceeding as part of his evidence upon oath or
affirmation, whether his evidence is given in open court or by affidavit or otherwise,
that assertion being known to the witness to be false.
(2) Every proceeding is judicial within the meaning of this section which
is held before any court, or before any judicial officer or other person having power
to take evidence on oath or affirmation.
(3) Every one is liable to imprisonment for a term not exceeding 5 years
who commits perjury.
182 Fabricating evidence
Every one is liable to imprisonment for a term not exceeding 3 years who,
with intent to mislead any court or any judicial officer in the exercise of his functions
as such, fabricates evidence by any means other than perjury.
183 Conspiracy to pervert justice
Every one is liable to imprisonment for a term not exceeding 3 years who
conspires or attempts to obstruct, prevent, pervert, or defeat the course of justice
in any cause or matter, civil or criminal.
184 Breaking prison
Every one is liable to imprisonment for a term not exceeding 5 years who
by force breaks any prison with intent to set at liberty himself or any other person
confined there.
185 Escape
Every one is liable to imprisonment for a term not exceeding 2 years who,
being in lawful custody, whether in a prison or elsewhere, escapes.
186 Rescue
Every one is liable to imprisonment for a term not exceeding 2 years who
rescues any person from lawful custody, whether in a prison or elsewhere, or who
assists any person to escape from such custody.
187 Criminal libel or slander
(1) A criminal libel is matter published, without lawful justification or
excuse, either designed to insult any person or likely to injure his reputation by
exposing him to hatred, contempt, or ridicule or likely to injure him in his
profession, office, business, trade, or occupation, whether such matter is expressed
by words, written or printed, or legibly marked on any substance, or by any object
signifying such matter otherwise than by words, and whether expressed directly
or by insinuation or irony.
(2) Publishing a criminal libel is –
(a) Exhibiting it in public; or
(b) Causing it to be read or seen, or showing or delivering it, or causing
it to be shown or delivered, with a view to its being read or seen, by
any person other than the person defamed.
(3) Every one is guilty of criminal slander who, without lawful justification
or excuse, uses any words that are likely to injure the reputation of any other
person by exposing him to hatred, contempt, or ridicule, or likely to injure him in
his profession, office, business, trade, or occupation, if the words are –
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(a) Spoken, or reproduced from a recording, within the hearing of more than 12 persons at a meeting to which the public are invited or have access, or within the hearing of more than 12 persons in any place to which the public have or are permitted to have access; or
(b) Broadcast by means of radio.
(4) Every one who publishes a criminal libel or is guilty of criminal slander
is liable to imprisonment for a term not exceeding 6 months.
(5) In a prosecution under this section the burden of proof shall be
determined by the same rules as in an action for damages for defamation.
(6) In a prosecution under this section it shall be no defence that the libel
or slander is true unless the publication of it was for the public benefit.
188 Definition of theft
(1) Theft or stealing is the act of fraudulently or dishonestly taking, or
converting to the use of any person, or misappropriating or disposing of, or dealing
in any other manner with, anything capable of being stolen, with intent to defraud
or injure any person having any property or interest in that thing.
(2) Every animate or inanimate thing whatever which is the property of
any person, and is movable, is capable of being stolen.
(3) Every thing whatever which is the property of any person and is capable
of being made movable is capable of being stolen as soon as it becomes movable,
although it is made movable in order to steal it.
189 Ineffectual defences to charge of theft
Without in any way limiting the generality of the foregoing definition of
theft, a person shall be deemed guilty of theft notwithstanding the fact –
(a) That at the time of the theft he was in lawful possession of the
property stolen; or
(b) That he had himself a lawful interest in the property stolen, whether
as a partner, co-owner, bailee, bailor, mortgagee, mortgagor, or
otherwise howsoever; or
(c) That he was a trustee of the property stolen; or
(d) That the property stolen was vested in him as an executor or
administrator.
190 Extended definition of theft
Without in any way limiting the generality of the foregoing definition of
theft, every person shall be deemed guilty of theft who holds, receives, or obtains
any money, valuable security, or other thing whatsoever capable of being stolen,
subject to any obligation (whether arising from an express or implied trust, or
from an express or implied contract, or from any other source whatsoever) to deal
with the money, valuable security, or thing in any manner, and who fraudulently
or dishonestly deals with it in any other manner or fails to deal with it under that
obligation.
191 Obtaining money or goods by false pretences
Every one who by means of any fraud or false pretence dishonestly obtains
for himself or for any other person (whether directly or through the medium of
any contract procured by the fraud or false pretence) anything capable of being
stolen is guilty of stealing the thing so obtained, and shall be liable accordingly.
Niue Act 1966 1175
192 Punishment of theft
(1) Every one who commits theft is liable –
(a) To imprisonment for a term not exceeding 3 months if the value of
the property stolen does not exceed 4 dollars;
(b) To imprisonment for a term not exceeding one year if the value of
the property stolen exceeds 4 dollars but does not exceed 100 dollars;
(c) To imprisonment for a term not exceeding 5 years if the value of
the property stolen exceeds 100 dollars.
(2) In computing for the purposes of this section the value of the property
stolen, where several thefts are charged in the same information against the same
person, the aggregate value of all such property shall be computed, and the
sentence shall be determined accordingly, and cumulative sentences in respect of
the several thefts so charged shall not be imposed.
(3) For the purposes of this section a valuable security shall be deemed to
be of the same value as the property to which it relates.
193 Stealing documents
(1) Every one who destroys, cancels, conceals, or obliterates in whole or in
part any document for any fraudulent or dishonest purpose is guilty of having
stolen that document, and is liable to imprisonment for a term not exceeding 3
years.
(2) Every one who in this or any other manner steals a testamentary instrument is liable to imprisonment for a term not exceeding 10 years.
194 Receiving stolen goods
Every one who receives any stolen property knowing it to have been stolen
is guilty of having stolen the property, and is liable accordingly.
195 Robbery
(1) Robbery is theft accompanied by violence or threats of violence to any
person or property, used to extort the property stolen or to prevent or overcome
resistance to its being stolen.
(2) Every one who commits robbery is liable to imprisonment for a term
not exceeding 10 years.
(3) Every one who assaults any person with intent to rob him is liable to
imprisonment for a term not exceeding 5 years.
196 Conversion or attempted conversion
(1) Every one is liable to imprisonment for a term not exceeding 5 years
who, unlawfully and without colour of right, but not so as to be guilty of theft,
takes or converts to his use or to the use of any other person any of the following
things –
who –
(a) Any motorcar, or any vehicle of any description; (b) Any ship;
(c) Any aircraft;
(d) Any part of any motorcar, vehicle, ship or aircraft;
(e) Any horse, mare, or gelding.
(2) Every one is liable to imprisonment for a term not exceeding one year
(a) Has in his possession by night any instrument, being an instrument capable of being used for taking or converting any of the things mentioned in subsection (1)(a) to (d), in circumstances that, prima
1176 Niue Laws 2006 Vol 3
facie, show an intention to use it for the taking or converting of any such thing as aforesaid;
(b) Has in his possession by day any such instrument as aforesaid with intent to take or convert any such thing as aforesaid.
(3) It is a defence to a charge under subsection (2) (a) if the person charged proves that he had lawful excuse for having the instrument in his possession.
197 Breach of trust
(1) Every trustee who with intent to defraud, and in violation of his trust,
converts anything of which he is a trustee to any use not authorised by the trust is
guilty of criminal breach of trust, and is liable to imprisonment for a term not
exceeding 5 years.
(2) For the purposes of this section an executor or administrator shall be
deemed to be a trustee of the property subject to his administration.
(3) Nothing in this section shall be so construed as in any manner to limit
the foregoing definition of the offence of theft, and if any act of a trustee is both
theft and a criminal breach of trust he may be convicted of either of those offences.
198 Menaces
Every one is liable to imprisonment for a term not exceeding 2 years who
with menaces demands from any person, either for himself or for any other person,
anything capable of being stolen, with intent to steal it.
199 Witchcraft
Every one is liable to imprisonment for a term not exceeding 6 months
who pretends to exercise or use any kind of witchcraft, sorcery, enchantment, or
conjuration, or undertakes to tell fortunes.
200 Obtaining credit by fraud
Every one is liable to imprisonment for a term not exceeding 6 months
who in incurring any debt or liability obtains credit by means of any fraud.
201 Accusation of criminal offences
Every one is liable to imprisonment for a term not exceeding 5 years who –
(a) With intent to extort or gain anything from any person, accuses or
threatens to accuse either that person or any other person of any
criminal offence, whether the person accused or threatened with
accusation is guilty of that offence or not; or
(b) With such intent as aforesaid, threatens that any person shall be so
accused by any person; or
(c) Causes any person to receive a document containing any such
accusation or threat, knowing the contents thereof.
202 Conspiracy to defraud
Every one is liable to imprisonment for a term not exceeding 3 years who
conspires with any other person by deceit or falsehood or other fraudulent means
to defraud the public or any person ascertained or unascertained.
Niue Act 1966 1177
203 Obtaining execution of valuable securities by fraud
Every one is liable to imprisonment for a term not exceeding 3 years who
by any false pretence causes or induces any person to execute, make, accept,
endorse, or destroy the whole or any part of any valuable security.
204 Burglary
(1) Every one is guilty of burglary and is liable to imprisonment for a term
not exceeding 5 years who by day or night –
(a) Breaks and enters any building or ship with intent to commit a
crime there; or
(b) Breaks out of any building or ship either after committing a crime
there or after having entered with intent to commit a crime there.
(2) In this section –
“break”, in relation to any building or ship, means to break any part,
internal or external, of the building or ship, or to open by any means
whatsoever any door, window, or other thing intended to cover
openings to the building or ship or to give passage from one part of it
to another;
“building” means any building, erection, or structure of any description,
whether permanent or temporary, and includes a tent or a caravan,
and also includes any enclosed yard or any closed cave or tunnel.
205 Unlawful entry of dwellinghouse
(1) Every one is liable to imprisonment for a term not exceeding 5 years
who unlawfully enters or is in any dwellinghouse by night with intent to commit
a criminal offence there or who is found by night in any dwellinghouse without
lawful justification for his presence there.
(2) Every one is liable to imprisonment for a term not exceeding 3 months
or to a fine not exceeding 0.5 penalty units who without lawful excuse (the proof
of which excuse shall be on him), but in circumstances that do not disclose the
commission of or an intention to commit any other offence, is found at any time in
any dwellinghouse, or in any enclosed yard, garden, or area or in or on board any
vessel of any kind or any aircraft.
(3) In this section –
“dwellinghouse” means –
(a) Any building, hut, tent, caravan, or other structure or erection,
whether permanent or temporary, which is used or intended to be
used in whole or in part for human habitation or occupation; or
(b) Any building, public or private, which is used or intended to be
used in whole or in part for the purpose of education or the reception
or lodging of any person for medical treatment or recuperation or
entertainment or any other purpose;
“night” means the time commencing on the expiration of the first half hour
after sunset and concluding at the beginning of the last hour before
sunrise.
205A Entering premises for a criminal purpose
Every one is liable to imprisonment for a term not exceeding 4 years who
unlawfully enters or is in any building, ship, or aircraft with intent to commit
there any criminal offence mentioned in this Part.
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206 Threats to kill or do bodily harm
Every one is liable to imprisonment for a term not exceeding 5 years who
sends or causes to be received, knowing the contents of it, any letter or writing
containing threats to kill or do bodily harm to any person, or who orally makes a
threat to kill or do bodily harm to any person.
207 Forgery
(1) Forgery is the making of a false document with intent to defraud or
deceive any person, whether ascertained or unascertained.
(2) Every one who commits forgery is liable to imprisonment for a term
not exceeding 5 years.
(3) In this section “false document” means a document –
(a) Of which the whole or any material part purports to be made by
any person who did not make it or authorise its making; or
(b) Of which the whole or any material part purports to be made on
behalf of any person who did not authorise its making; or
(c) In which, though it purports to be made by the person who did in
fact make it or authorise its making, or purports to be made on
behalf of the person who did in fact authorise its making, the time
or place of its making, where either is material, or any number or
distinguishing mark identifying the document, where either is
material, is falsely stated; or
(d) Of which the whole or some material part purports to be made by
a fictitious or deceased person, or purports to be made on behalf of
any such person; or
(e) Which is made in the name of an existing person either by him or
by his authority, with the intention that it should pass as being made
by some person, real or fictitious, other than the person who makes
or authorises it.
(4) In this section, “making a false document” includes making any material
alteration in a genuine document, whether by addition, insertion, obliteration,
erasure, removal, or otherwise.
(5) Forgery is complete as soon as the document is made with such
knowledge and intent as aforesaid, although the offender may not have intended
that any particular person should use or act upon it as genuine, or should be
induced by the belief that it is genuine to do or refrain from doing anything.
(6) Forgery is complete although the false document may be incomplete,
or may not purport to be such a document as would be valid in law, if it be so
made and is such as to indicate that it was intended to be acted on as genuine.
208 Extended definition of forgery
Every one who procures the execution of any document by any person by
falsely pretending that its contents are different from what they really are is guilty
of forging that document, and is liable accordingly.
209 Making counterfeit coin
Every one is liable to imprisonment for a term not exceeding 7 years who
makes or begins to make counterfeit coin of New Zealand or of any other country,
or who has in his possession any dies or other instruments or materials intended
to be used in the making of such counterfeit coin.
Niue Act 1966 1179
210 Lightening coin
Every one is liable to imprisonment for a term not exceeding 2 years who
diminishes or lightens any coin, whether of New Zealand or of any other country,
with intent that when so dealt with it shall pass as current coin either in Niue or
New Zealand or elsewhere.
211 Uttering counterfeit coin
Every one who fraudulently utters any counterfeit coin is liable to
imprisonment for a term not exceeding 6 months.
212 Arson
(1) Arson is the offence of wilfully, and without lawful justification and
without bona fide claim of right, setting fire to any building, ship, crop, chattel, or
other thing whatsoever, whether attached to the soil or not.
(2) Where the act done results in the destruction of or any damage to
anything in which the person accused has an interest, whether total or partial, the
existence of that interest shall not prevent his act being an offence if it is done with
intent to defraud or to cause loss to any other person. For the purposes of this
subsection, where any property is subject to any mortgage or charge, each of the
parties to the mortgage or charge shall be deemed to have a partial interest in that
property.
(3) Every one who commits the offence of arson is liable to imprisonment
for a term not exceeding 5 years.
213 Wilful mischief to property
(1) Every one is guilty of an offence who wilfully and without lawful
justification and without bona fide claim of right destroys or damages any property,
whether movable or immovable.
(2) Where the act done results in the destruction of or any damage to
anything in which the person accused has an interest, whether total or partial, the
existence of that interest shall not prevent his act being an offence if it is done with
intent to defraud or to cause loss to any other person. For the purposes of this
subsection, where any property is subject to any mortgage or charge, each of the
parties to the mortgage or charge shall be deemed to have a partial interest in that
property.
(3) Every person who commits an offence against this section is liable to
imprisonment for a term not exceeding 3 years if the damage done or intended to
be done by him amounts to $20 or more, and to imprisonment for a term not
exceeding 6 months in any other case.
214 Provoking breach of the peace
Every one is liable to a fine not exceeding 0.5 penalty units who uses any
threatening, abusive, or insulting words or behaviour in any public place with
intent to provoke a breach of the peace or whereby a breach of the peace may be
occasioned.
215 Profane, indecent, or obscene language
Every one is liable to imprisonment for a term not exceeding 3 months or
to a fine not exceeding 0.5 penalty units who uses any profane, indecent, or obscene
language in any public place or within the hearing of any person in a public place.
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216 Disorderly conduct in public places
Every one is liable to a fine not exceeding 0.5 penalty units who is guilty of
any disorderly conduct in any public place to the annoyance of persons there
present.
217 Obstructing public place
Every one is liable to a fine not exceeding 0.5 penalty units who without
lawful justification obstructs any public place, or creates any source of danger in
it, or otherwise commits any public nuisance in it.
218 Drunkenness
Every one is liable to imprisonment for a term not exceeding one month or
to a fine not exceeding 0.5 penalty units who is found drunk in any public place.
219 Animal trespass
(1) A person must not permit a horse, sheep, pig, goat, or cattle to wander
or be at large in a public place or to trespass on land.
(2) A person who fails to comply with subsection (1) is guilty of an offence
and is liable on conviction to a fine not exceeding 2 penalty units or for a second
or subsequent offence to a fine not exceeding 5 penalty units.
220 Prostitution
Any prostitute is liable to imprisonment for a term not exceeding one month
or to a fine not exceeding 0.5 penalty units who loiters and importunes any person
in any public place for the purpose of prostitution.
221 Laying poison
Every one is liable to a fine not exceeding 0.5 penalty units who without
lawful justification places any poison in any place so as to be a source of danger to
human beings or to animals.
222 Polluting water
Every one is liable to imprisonment for a term not exceeding 6 months or
to a fine not exceeding 1 penalty unit who throws any offensive matter into or
otherwise pollutes any watercourse, well, cistern, or other place from which the
supply of water for the use of the inhabitants is obtained.
223 Sale of unwholesome provisions
Every one is liable to imprisonment for a term not exceeding one month or
to a fine not exceeding 0.5 penalty units who sells, or exposes for sale, or has in his
possession with intent to sell, any food or drink which he knows, or might by the
exercise of reasonable care have known, to be unwholesome.
224 Insanitary premises
Every one is liable to a fine not exceeding 0.5 penalty units who permits
any premises in his occupation or belonging to him to be in an insanitary or
offensive condition to the danger or annoyance of the public or of his neighbours.
225 Wilful trespass
Every one is liable to a fine not exceeding 0.5 penalty units who wilfully
trespasses on land in the occupation of any other person.
Niue Act 1966 1181
226 Cruelty to animals
(1) A person must not –
(a) cruelly beat, overdrive, overload, abuse, torture, or otherwise ill
treat an animal, or
(b) being the owner or having the charge of an animal –
(i) omit to supply it with proper and sufficient food, water, or
shelter; or
(ii) abandon the animal with the intention of relinquishing
ownership or charge of it.
(2) A person who fails to comply with subsection (1) is guilty of an offence
and is liable on conviction to a fine not exceeding 2 penalty units or for a second
or subsequent offence to a fine not exceeding 5 penalty units.
(3) It is not a defence for a person charged with an offence under subsection
(1)(b)(ii) to prove that the animal to which the charge relates was abandoned on
land in which that person had an interest.
(4) In this section “animal” means any beast or bird of any species whatever.
227 Falsely trading as a company
(1) Every one is liable to a fine not exceeding 2 penalty units who uses in
connection with his trade or business any name, sign, device, or other
representation indicating or calculated to lead other persons to believe contrary
to the fact that the trade or business is that of an incorporated company.
(2) In any prosecution for an offence against this section the burden of
proving that the incorporated company exists and that the trade or business so
carried on is the trade or business of that company shall be upon the accused.
228 Conspiracy
Every one who conspires with any other person to commit any offence
punishable by imprisonment is liable to imprisonment for a term not exceeding
half the longest term to which a person committing the said offence may be
sentenced.
228A Wrongful communication, retention or copying of official information
(1) Everyone is liable to imprisonment for a term not exceeding 3 years
who –
(a) Knowingly or recklessly, and with knowledge that he is acting without proper authority, communicates any official information to any other person, or uses directly or indirectly any official information for any purpose whatsoever where such disclosure or use is contrary to the interests of Niue;
(b) Knowingly or recklessly, and with knowledge that he is acting
without proper authority, retains or copies official information, or
permits any other person to retain or copy such official information;
(c) Knowingly fails to comply with any directions issued by a lawful
authority for the return of any official information, including copies,
which is in his possession or under his control.
(2) In this section “official information” means any information held by –
(a) A department or agency of government; or
(b) A Minister of the Crown in his official capacity; or
(c) An officer or employee of any department or agency of government
in his capacity as such an officer or employee or in his capacity as a
statutory officer; or
1182 Niue Laws 2006 Vol 3
(d) An independent contractor engaged by any department or Minister of the Crown or agency of government in his capacity as such contractor;
(e) Any committee or advisory body established for the purpose of assisting or advising or performing functions connected with any department or Minister of the Crown or agency of government.
Attempts
229 Attempts to commit offences
(1) Every one who, having an intent to commit an offence, does or omits
an act for the purpose of accomplishing his object, is guilty of an attempt to commit
the offence intended, whether in the circumstances it was possible to commit the
offence or not.
(2) The question whether an act done or omitted with intent to commit an
offence is or is not only preparation for the commission of that offence, and too
remote to constitute an attempt to commit it, is a question of law.
(3) An act done or omitted with intent to commit an offence may constitute
an attempt if it is immediately or proximately connected with the intended offence,
whether or not there was any act unequivocally showing the intent to commit
that offence.
(4) Everyone who attempts to commit an offence in respect of which no
punishment is expressly prescribed by this or any other enactment is liable to not
more than half the maximum punishment to which he would be liable if he had
committed that offence.
230 Attempt proved when offence is charged
Where the commission of the offence charged is not proved, but the evidence
establishes an attempt to commit the offence, the accused may be convicted of the
attempt.
231 Offence proved when attempt is charged
(1) Where an attempt to commit an offence is charged, but the evidence
establishes the commission of the full offence, the accused may be convicted of
the attempt.
(2) After a conviction for that attempt, the accused shall not be liable to be
tried again for the offence which he was charged with attempting to commit.
232 Inciting
Parties to Offences
(1) Every person who incites any person, whether ascertained or unascertained, to commit any offence punishable by imprisonment shall be liable to imprisonment for a term not exceeding half the longest term to which a person committing the said offence may be sentenced or, where that offence is punishable by imprisonment for life, to imprisonment for a term not exceeding 14 years.
(2) If the offence to which any person is so incited is actually committed by him, the person so inciting him shall be liable, on a charge of inciting, to the same punishment as if he had himself committed the offence, or he may be charged and convicted as a party to the offence so procured by him.
Niue Act 1966 1183
233 Parties to offences
Every one is a party to and guilty of an offence who –
(a) Actually commits the offence; or
(b) Does or omits any act for the purpose of aiding any person to
commit the offence; or
(c) Abets any person in the commission of the offence; or
(d) Counsels or procures any person to commit the offence.
234 Common criminal purpose
If several persons form a common intention to prosecute any unlawful
purpose and to assist each other in it, each of them is a party to every offence
committed by any one of them in the prosecution of that common purpose, the
commission of which offence was known to be a probable consequence of the
prosecution of that common purpose.
235 Counselling or procuring
(1) Every one who counsels or procures another to be a party to an offence
of which that other is afterwards guilty is a party to that offence, although it may
be committed in a way different from that which was counselled.
(2) Every one who counsels or procures another to be a party to an offence
is a party to every offence which that other commits in consequence of that
counselling or procuring, and which the person counselling or procuring knew to
be likely to be committed in consequence of the counselling or procuring.
236 Accessory after the fact
(1) An accessory after the fact to an offence is one who, knowing any person
to have been a party to the offence, receives, comforts, or assists that person or
tampers with or actively suppresses any evidence against him, in order to enable
him to escape after arrest or to avoid arrest or conviction.
(2) No married person whose spouse has been a party to an offence shall
become an accessory after the fact to that offence by doing any act to which this
section applies in order to enable the spouse, or the spouse and any other person
who has been a party to the offence, to escape after arrest or to avoid arrest or
conviction.
237 Punishment of accessories
Every one who is accessory after the fact to any offence punishable by
imprisonment, being an offence in respect of which no express provision is made
by this Act or by some other enactment for the punishment of an accessory after
the fact, is liable to imprisonment for a term not exceeding 7 years if the punishment
for that offence is imprisonment for life, and not exceeding 5 years if that
punishment is imprisonment for 10 or more years; and in any other case is liable
to not more than half the maximum punishment to which he would have been
liable if he had committed the offence.
237A Children under 10
Infancy
(1) No person shall be convicted of an offence by reason of any act done or omitted by him when under the age of 10 years.
(2) The fact that by virtue of this section any person has not been or is not
liable to be convicted of an offence shall not affect the question whether any other
person who is alleged to be a party to that offence is guilty of that offence.
1184 Niue Laws 2006 Vol 3
237B Children between 10 and 14
(1) No person shall be convicted of an offence by reason of any act done or
omitted by him when of the age of 10 but under the age of 14 years, unless he
knew either that the act or omission was wrong or that it was contrary to law.
(2) The fact that by virtue of this section any person has not been or is not
liable to be convicted of an offence shall not affect the question whether any other
person who is alleged to be a party to that offence is guilty of that offence.
238 Common law defences
Defences
All rules and principles of the common law which render any circumstance a justification or excuse for any act or omission, or a defence to any charge, shall remain in force with respect to all offences constituted by this or any other enactment, except so far as inconsistent with this or any other enactment.
239 Common law offences
No person shall be proceeded against for any criminal offence at common
law.
Sentences
240 Power to fine instead of or in addition to imprisonment
Except where otherwise expressly provided, every one liable to
imprisonment for any term for any offence may be sentenced to pay a fine not
exceeding 2 penalty units in addition to or instead of imprisonment.
241 Enforcement of fines
(1) Every fine imposed upon any person by the High Court shall constitute
a judgment debt due by that person to the Crown, and payment of it shall be
enforceable and recoverable accordingly by writ of sale or any other civil process
of execution in the same manner in all respects as if the debt had been recovered
in civil proceedings at the suit of the Crown.
(2) Any person upon whom any such fine has been imposed may, by
warrant under the seal of the High Court, be committed to prison by a Judge of
that Court for a period not exceeding 6 months, but shall be entitled to be
discharged from imprisonment on payment of the fine.
(3) When any person has been so committed to prison, no proceedings or
further proceedings shall thereafter be taken for the enforcement of the fine by
way of civil process under this section.
242 Imprisonment in Niue
Save so far as herein otherwise provided, every sentence of imprisonment
shall be carried into effect in some prison in Niue and subject to any Act.
243 Transfer of convicted persons to New Zealand
(1) Every person sentenced to imprisonment, or committed to prison for 6
months or more including an offender who has been recalled under section 244A
may, by warrant of the Cabinet and the Seal of Niue, be transferred to some prison
in New Zealand named or described in the warrant.
(2) On the issue of any such warrant, the person named therein shall
thereupon be taken in custody from Niue to New Zealand, and there forthwith
delivered to the Superintendent of the prison named or described in the warrant.
Niue Act 1966 1185
(3) The warrant shall be delivered to the said Superintendent together with a certificate under the hand of a Judge of the High Court and the seal of that Court setting forth the fact of the conviction or commitment of the person named in the warrant, the offence of which he was convicted or the reason of the commitment, and the term for which he has been so sentenced or committed.
(4) Where any person brought to New Zealand under this section is
imprisoned in New Zealand under any of the foregoing provisions of this section –
(a) The period during which he has been in custody since the sentence
was imposed in Niue until his delivery to the Superintendent in
New Zealand shall for all purposes be computed as part of the term
of his imprisonment;
(b) Subject to section 244, he shall be imprisoned in New Zealand in
the same manner in all respects and shall be subject in all respects
to the same laws, as far as applicable, as if he had been sentenced
by the Supreme Court of New Zealand to imprisonment for the life
offence, or committed to prison by that Court on the like grounds.
244 Release of prisoners transferred to New Zealand
[This section is not Niue law. The Criminal Justice Act 1954 of New Zealand has been
replaced by the Criminal Justice Act 1985.]
(1) Where any person (in this section referred to as the offender) brought
to New Zealand under section 243 is imprisoned in New Zealand under that
section –
(a) The Minister of Justice, with the concurrence of the Minister of
Foreign Affairs –
(i) may, by warrant signed by him, grant to the offender, not being
an offender serving a sentence of life imprisonment, remission
of any part of his sentence, not exceeding one-fourth of the
term, on the ground of his good conduct and industry; and
(ii) may, where he considers that the conduct of the offender has
been exemplary during his sentence, or that the offender has
during his sentence performed some outstanding act of service,
grant to the offender, not being an offender serving a sentence
of life imprisonment, in addition to any remission which may
be granted to him under subparagraph (i), a special remission
of part of his sentence, not exceeding one-twelfth of the term;
and may revoke any such remission at any time before the
offender is released; and
(iii) may, in the case of any offender who is a Niuean, direct by
warrant signed by him that on the release of the offender he be
allowed to remain in New Zealand;
(b) Where any offender is granted a remission of any part of his sentence
under paragraph (a) then –
(i) if under this section he is to be released in New Zealand, the
Minister of Justice, with the concurrence of the Minister of
Foreign Affairs may, by warrant at any time before the offender
is released, impose such special conditions of probation in
addition to those that apply by virtue of section 38 of the
Criminal Justice Act 1954;
(ii) if under this section he is to be returned to Niue, the Minister
of Justice, with the like concurrence, may, by warrant at any
time before the offender is released for the purpose of being
1186 Niue Laws 2006 Vol 3
returned to Niue, direct that, until a date specified in the warrant (being a date not later than the date of expiry of the term of the original sentence), the offender shall be subject to supervision by a person to be nominated by the Premier, and shall comply with the directions of that person with respect to such matters as are specified in the warrant;
(c) The provisions of section 33A of the Criminal Justice Act 1954 as far as they are applicable but subject to the provisions of this section, shall apply with respect to the offender as if he had been sentenced to imprisonment by the High Court of New Zealand.
(2) The Prisons Parole Board, on considering the case of any offender under section 33A of the Criminal Justice Act 1954 (as so enacted), shall have regard, in addition to the matters specified in subsection (6) of that section, to such other matters of any kind whatsoever as it considers relevant in the circumstances of the case, and may recommend that the offender –
(a) Be returned to Niue and released on his arrival there; or
(b) Be returned in custody to Niue and continue to serve the sentence
of imprisonment in some prison in Niue until a date specified by
the Board (being, in the case of a prisoner undergoing a sentence of
life imprisonment, such date as the Board thinks fit, and, in the
case of any other prisoner, a date not later than 3 months after his
return to Niue) and be released on the date so specified; or
(c) Be released in New Zealand.
(3) Any recommendation of the Prisons Parole Board under subsection (2)
may be subject to such conditions as the Board thinks fit, including, if the Board
thinks fit, a condition, in the case of a prisoner to whom paragraph (a) or paragraph
(b) of that subsection applies, that, until a date specified by the Board (being, in
the case of an offender undergoing a sentence of life imprisonment, such date as
the Board thinks fit, and in any other case a date not later than the date of the
expiry of the term of the original sentence), he shall be subject to supervision by a
person to be nominated by the Premier and shall comply with the directions of
that person with respect to such matters as the Board specifies.
(4) The provisions of the Criminal Justice Act 1954 relating to the release
of an offender on probation shall not apply with respect to any offender who is
returned to Niue under this section.
(5) Where under this section any offender is released in New Zealand,
sections 35 to 39 of the Criminal Justice Act 1954, as far as they are applicable,
shall apply as if he had been so released at or before the expiry of a term of
imprisonment imposed by the High Court of New Zealand.
(6) Where any offender who under this section is released in New Zealand
desires to return to Niue before the expiration of the term of his probation, the
Minister of Justice, on the application of the offender and with the concurrence of
the Minister of Foreign Affairs, may cancel the probationary licence as from the
date on which the offender leaves New Zealand, and by warrant direct that as
from the date of the arrival of the offender in Niue until a date specified in the
warrant (being not later than the date on which the term of probation would have
expired if the probationary licence had not been cancelled) the offender shall be
subject to supervision by a person to be nominated by the Premier and shall comply
with the directions of that person with respect to such matters as are specified in
the warrant.
(7) Every offender, if he is a Niuean, shall, as soon as he is entitled to be
released or as soon thereafter as may be, unless he is to be released in New Zealand
Niue Act 1966 1187
under this section, be returned to Niue under a warrant signed by the Minister of Justice, and in the meantime shall be detained in custody in some prison in New Zealand appointed by that warrant.
(8) A recommendation of the Prisons Parole Board under this section may be given effect under a warrant signed by the Minister of Justice with the concurrence of the Minister of Foreign Affairs.
(9) For the purposes of this section, cumulative terms of imprisonment shall be treated as one term.
(10) Where any offender is for the time being subject to supervision in
Niue under this section, the term of his sentence shall continue to run while he is
subject to supervision as if he were still serving the sentence; and the date of expiry
of the sentence shall be determined accordingly.
244A Recall of offender subject to supervision
(1) Where any offender undergoing a sentence of imprisonment for life is
for the time being subject to supervision in Niue under section 244, the Court on
application of the Chief of Police may at any time before the expiration of the
period of supervision, by warrant direct that the offender be recalled.
(2) On the giving of that direction, the supervision shall be deemed to be
cancelled, and the offender may be arrested without warrant by any constable,
and, subject to section 244, shall continue to serve his original sentence.
(3) The powers conferred by subsection (1) may be exercised on such
grounds as the Court thinks fit and whether or not the offender has committed a
breach of any condition of his supervision.
245 Person conditionally released from imprisonment
(1) Any person who is released from imprisonment –
(a) Pursuant to a remission of part of his sentence under section
244(1)(a) or to a recommendation of the Prisons Parole Board under
paragraph (c) of that subsection subject to any conditions imposed
under that section, and is returned to Niue under that section
(including a person who returns to Niue under subsection (6) of
that section); or
(b) Under a remission of part of his sentence under section 286 subject
to any conditions imposed under that section –
and who commits a breach of any such condition may be arrested by any constable
without warrant and brought before a Judge of the High Court, and may be
sentenced to imprisonment, in the case of a person who was undergoing a sentence
of life imprisonment, for such period as the Court thinks fit, and in any other case
for any period not exceeding the unexpired portion of the term of his original
sentence.
(2) For the purposes of this section, cumulative terms of imprisonment
shall be treated as one term.
246 Cumulative sentences
(1) When an offender is sentenced for more offences than one at the same
time, or if, when sentenced for one offence, he has already been sentenced for any
other offence and has not yet completed the sentence so imposed upon him, the
Court may direct that the sentences passed on him for his several offences shall
take effect one after the other or concurrently.
(2) Save as provided by this section, every sentence of imprisonment shall
commence to take effect on the day on which the sentence is pronounced.
1188 Niue Laws 2006 Vol 3
PART 6
CRIMINAL PROCEDURE
247 [Repealed by 2004/270]
248 Jurisdiction of High Court
Except where otherwise expressly provided, all offences against the laws
of Niue may be tried in the High Court under this Part.
249 [Repealed by 2004/270]
Preliminary Proceedings
250 Arrest without warrant
(1) No person shall be arrested without warrant except under this Act or
under some other enactment giving power to arrest without warrant.
(2) Any constable and any person whom he calls to his assistance may,
without warrant, arrest and take into custody –
(a) Any person whom he finds disturbing the public peace or whom
he has good cause to suspect is committing any offence punishable
by imprisonment;
(b) Any person whom he has good cause to suspect of having
committed a breach of the peace or any offence punishable by
imprisonment;
(c) Any person whom he has good cause to suspect to be attempting
or about to commit a breach of the peace or any offence punishable
by imprisonment;
(d) Any person whom he has good cause to suspect is committing an
offence against section 214 or section 216.
(3) Any person may, without warrant, arrest and take into custody –
(a) Any person whom, in any public place, he finds disturbing the
public peace;
(b) Any person whom he has good cause to suspect to be about to
commit, in a public place, a breach of the peace.
(4) Subsections (1) and (2) shall be read subject to the express provisions of
any enactment imposing any limitation, restriction, or condition on the exercise
of any power to arrest without warrant conferred upon any constable or any other
person in respect of any specified offence or any specified class of offences.
(5) Where under any enactment, other than this Act, any officer or other
person, not being a constable, has power without warrant, to arrest any other
person, any constable may exercise that power in the same cases and in the same
manner as that officer or other person.
(6) Where any person, other than a constable, arrests without warrant, any
other person, he shall as soon as reasonably possible thereafter deliver that other
person into the custody of a constable.
251 Arrest on warrant of Commissioner
A Commissioner, on receiving such information on oath as seems sufficient
to him, whether made in writing or not, may issue his warrant for the arrest of
any person for any offence against the laws of Niue, and thereupon any constable
or other person specified in the warrant in that behalf may arrest the accused,
who shall be forthwith brought before a Judge of the High Court or the Registrar
there to be dealt with under this Part.
Niue Act 1966 1189
251A Duty of persons arresting
(1) It is the duty of every one arresting any other person to inform the
person he is arresting, at the time of the arrest, of the act or omission for which the
person is being arrested, unless it is impracticable to do so, or unless the reason
for the arrest is obvious in the circumstances. The act or omission need not be
stated in technical or precise language, and may be stated in any words reasonably
sufficient to give that person notice of the true reason for his arrest.
(2) It is the duty of every one who arrests any other person under any
process or warrant –
(a) If he has the process or warrant in his possession at the time of the
arrest, to produce it if required by that person to do so;
(b) If he does not have the process or warrant in his possession at the
time of the arrest, to show it to the arrested person as soon as
practicable after the arrest, if that person so requires.
(3) Where under any enactment any person other than a constable has, by
virtue of his office, a power of arrest without warrant, he shall, whenever he arrests
any other person under that power –
(a) If he has evidence of his appointment to that office in his possession
at the time of the arrest, produce it if required by that person to do
so;
(b) If he does not have evidence of his appointment in his possession
at the time of the arrest, show it to the arrested person as soon as
practicable after the arrest, if that person so requires.
(4) A failure to fulfil any of the duties mentioned in subsections (1)-(3)
shall not of itself deprive the person arresting, or his assistants, of protection from
criminal responsibility, but shall be relevant to the inquiry whether the arrest might
not have been effected, or the process or warrant executed, by reasonable means
in a less violent manner.
(5) Every person who is arrested on a charge of any offence shall be brought
before the High Court, as soon as possible, to be dealt with according to law.
(6) Nothing in this section shall limit or affect the express provisions of
any enactment whereby –
(a) The burden of proving the absence of reasonable or probable cause,
or the absence of justification, for any arrest is on any person;
(b) Any person having, by virtue of his office, a power of arrest without
warrant is entitled, in any specified circumstances, to exercise that
power without the production of evidence of his appointment to
that office, or is required in exercising the power, to comply with
any specified conditions or restrictions in addition to or instead of
producing evidence of his appointment.
252 Committal for trial
(1) When any person arrested with or without warrant under the foregoing
provisions is brought before a Judge or the Registrar, the Judge or Registrar may,
after such preliminary inquiry (if any), and after giving the prisoner an opportunity
of being heard, by warrant either discharge the prisoner, or commit him to prison
to await trial by the High Court for the offence for which he was arrested, or
admit him to bail, with or without sureties, conditioned to appear before the High
Court in due course for trial for the offence.
(2) No such discharge shall amount to an acquittal so as to preclude the
prosecution and trial of the accused in the High Court for the offence for which he
was so arrested.
1190 Niue Laws 2006 Vol 3
253 Information
Trial by the High Court
Every prosecution in the High Court for any offence shall be commenced by an information in writing laid by a constable or any other prosecutor before a Judge or the Registrar of that Court.
254 Warrant or summons
On the commencement of any such prosecution, any Judge or Commissioner
of the High Court or any two Justices of the Peace acting together may unless the
accused is already in custody, at any time issue either a warrant for the arrest of
the accused or a summons requiring him to appear before the High Court at the
time and place specified in the summons, there to answer the charge so made
against him in the information and set out in the summons.
255 Warrant after issue of summons
Any such warrant may be at any time issued by a Judge or Commissioner
of the High Court or any two Justices of the Peace acting together, notwithstanding
the fact that a summons has been already issued to the accused as aforesaid.
255A Arrested person may be released on bail
(1) Where, under section 250 (1), any person is arrested without warrant
by a constable or some other person on the grounds that the constable or other
person suspects on reasonable grounds that the person arrested has committed
any one or more of the following offences –
(a) Wilful mischief to property; or
(b) Resisting a constable in the execution of his office; or
(c) Using profane, indecent, or obscene language; or
(d) Indecent behaviour; or
(e) Assault; or
(f) Fighting or drunkenness in a public place; or
(g) Any offence against section 205 (2) –
then, notwithstanding section 250 (2), on the arrested person being brought before
a constable in charge of any police station, the constable in charge of the police
station may release the arrested person on bail, with or without sureties,
conditioned for the appearance of the arrested person before the High Court at
such place and at such time (being not more than 3 clear days after the date of the
arrest of the arrested person) as the constable in charge of the police station specifies.
(2) Should the constable in charge of a police station not release any arrested
person on bail under subsection (1) the provisions of section 250 (2) shall apply to
that person.
(3) Where any person who has been released on bail under subsection (1)
appears before the High Court, then, on his appearance before the High Court, he
shall be deemed to be in custody.
(4) Nothing in subsection (1) shall derogate from section 257.
256 Prisoners brought before Court before commencement of prosecution
(1) When any person charged with an offence is brought before a Judge of
the High Court or any two Justices of the Peace acting together in custody, having
been arrested without warrant or on a warrant issued under section 251, the Judge
may, unless a prosecution has already commenced against the prisoner by
information as aforesaid, either discharge the prisoner, or remand him in custody
pending the commencement of a prosecution, or release him on bail, with or
Niue Act 1966 1191
without sureties, conditioned for his appearance before the High Court at such time and place as the Judge thinks fit.
(2) No discharge under this section shall amount to an acquittal so as to preclude the prosecution or trial of the prisoner for the offence for which he has been so arrested.
257 Remand
When any prosecution has been commenced in the High Court, the Court
may either remand the accused in custody or admit him to bail, with or without
sureties, conditioned to appear before the High Court at any other time or place.
258 Trial of accused in his absence
When any person who is prosecuted for an offence punishable by fine only
has been duly summoned to appear before the High Court and fails to appear
under the summons, the Court may try and sentence him for that offence in his
absence.
Assessors
259 Constitution of Court in criminal trials
Every criminal trial in the High Court shall take place before one Judge of
that Court sitting with or without assessors under the provisions of this Part.
260 Judge with assessors
On the trial of any person for any offence punishable by imprisonment for
more than 5 years, the Judge shall sit with assessors.
261 Judge without assessors
On the trial of any person on an information charging him exclusively with
an offence or offences punishable only by fine, the Judge shall sit without assessors.
262 Judge with or without assessors as he thinks fit
In all other criminal trials, the Judge shall sit without assessors, unless the
Court in its discretion orders otherwise, either on its own motion or on the
application ex parte or otherwise of either the prosecutor or the accused.
263 Order appointing assessors
Any such order may be made at any time after the commencement of the
prosecution, and whether before or during the trial; but, if made after any evidence
has been heard at the trial, all such evidence shall, except so far as repeated before
the Judge and assessors, be of no force or effect.
264 Number and qualifications of assessors
(1) The assessors shall in all cases be 6 in number, and shall be such fit and
proper persons (whether men or women) as a Judge of the Court thinks fit, subject
to any rules of Court which may be made in that behalf, to appoint by warrant
under his hand and the seal of the Court, and the consent of an assessor shall not
be requisite for his appointment.
(2) No person shall be appointed as an assessor unless he has first been
nominated by the Cabinet by warrant published in the Gazette as a person qualified
for appointment as an assessor under this Act, either generally or in respect of
any particular case or class of cases; and the Cabinet may accordingly nominate in
this behalf such and so many persons as the Cabinet thinks qualified by reason of
1192 Niue Laws 2006 Vol 3
their character, education, ability, or reputation to hold that office, and may at any time in like manner revoke any such nomination.
265 Default of assessors
If any person so appointed as an assessor, and having had reasonable notice
of the time and place of the trial, fails without reasonable excuse duly to attend at
the trial or at any adjournment of it, or duly to make oath as such, or duly to act as
assessor throughout the trial, he shall be guilty of contempt of the High Court.
266 Remuneration of assessors
Every assessor shall be entitled to receive from the Niue Government
Account such remuneration or allowances in respect of his services as may be
authorised by the Judge at the trial in conformity with any rules of Court which
may be made in that behalf.
267 Oath of assessors
Before an assessor commences to act as such, he shall in open court and in
the presence of the accused make oath to act well and truly as assessor and to
decide in accordance with the evidence and with law.
268 Change of assessors
At any time after the appointment of an assessor and before he has been
sworn as aforesaid, a Judge of the Court may, either of his own motion or on the
application ex parte or otherwise of the prosecutor or the accused, if he is satisfied
there is any reasonable and sufficient objection to that assessor, remove him and
appoint another assessor in his place.
269 Discharge of assessors and new trial
(1) If at any time after the commencement of the trial and before judgement
the Judge is of the opinion that, owing to the misbehaviour of any assessor, or to
the death, illness, or absence of any assessor, or to any accident or misadventure,
or to any other sufficient cause, a new trial is necessary in the interests of justice,
he may discharge the assessors and order a new trial accordingly.
(2) Every such new trial shall take place before the same or another Judge
with assessors in the same manner as if no previous trial had taken place.
270 Concurrence of assessors
On a trial with assessors, no person shall be convicted by the Judge of any
offence, unless the conviction is concurred in by not less than 4 of the assessors.
271 Concurrence of Judge
If the Judge is of opinion that the accused should not be convicted, or if
fewer than 4 of the assessors concur in his conviction, the accused shall be acquitted.
272 Sentence
The concurrence of assessors in the sentence to be passed by the Judge
shall not be necessary.
Niue Act 1966 1193
273 Concurrence of assessors necessary for conviction
The concurrence of the assessors shall not be necessary for any other act of
the Court or the Judge other than conviction, and in all other respects the
jurisdiction of the Court shall be exercised by the Judge in the same manner as if
he was sitting without assessors.
Miscellaneous Provisions
274 Alternative and cumulative charges
(1) Subject to this section, in any prosecution in the High Court the
information of the prosecutor may relate to 2 or more distinct offences, whether
alternative or cumulative.
(2) No information for the offence of murder shall charge any other offence
except manslaughter.
(3) No information for the offence of rape shall charge any other offence
except indecent assault and an attempt to commit rape.
275 Relation between information and conviction
On an information for any offence the accused may be convicted either of
the offence charged in the information or of any offence which is included within
the offence so charged and which might lawfully have been charged in the same
information.
276 Withdrawal of information
(1) An information in the High Court for any offence may at any time,
whether before or during the trial, be withdrawn by the prosecutor with the leave
of a Judge of the Court, but not otherwise.
(2) An information so laid and withdrawn shall not operate as a bar to any
further proceedings against the accused in respect of the same offence.
277 Drawing up of conviction
(1) On the conviction of any person of any offence before the High Court,
a minute or memorandum of the conviction shall thereupon be drawn up and
preserved as a record of the Court, and a formal conviction under the seal of the
Court may be drawn up at any time afterwards when it becomes necessary.
(2) In the meantime the conviction and sentence may be carried into
execution, and shall have the same force and effect in every respect as if the
conviction had been formally drawn up under the seal of the Court.
278 Defects of information, summons, or warrant
(1) No objection shall be taken or allowed to any information, summons,
or warrant in any criminal proceedings before the High Court for any alleged
defect in it in substance or in form, or for any variance between the information,
summons, or warrant and the evidence adduced at the trial.
(2) The High Court may at any stage of the trial amend the information in
such manner as it thinks fit in respect of any such defect or variance.
(3) Where under subsection (2) any information is amended by substituting
one offence for another, the following provisions shall apply:
(a) Subject to paragraphs (b) and (c), the trial shall be continued as if
the accused had originally been charged with the substituted
offence;
1194 Niue Laws 2006 Vol 3
(b) Before the trial is continued, the substance of the information as amended shall be stated to the accused and he shall be asked how he pleads; and, if he pleads guilty, the High Court may convict him or deal with him in any other manner authorised by law;
(c) Any evidence already given shall be deemed to have been given in and for the purposes of the trial of the information as amended, but either party shall have the right to examine or cross-examine or re-examine any witness whose evidence has already been given in respect of the offence originally charged.
(4) The High Court may, at the request of the accused, if it is of opinion that he would be embarrassed in his defence by reason of any amendment made or proposed to be made under this section, adjourn the trial.
279 Payment of witnesses
Any witness at a criminal trial may, if the Judge thinks fit and certifies
accordingly, be paid out of the Niue Government Account such allowance for his
expenses and loss of time as is so certified, subject to such rules of Court as may
be made in that behalf.
280 Court may order convicted person to come up for sentence
(1) The Court, on convicting an accused person of an offence under any
enactment, may, having regard to the circumstances, including the nature of the
offence and the character of the offender, instead of passing sentence, order the
offender to appear for sentence if called upon to do so, on such conditions as it
thinks fit, including, if the Court thinks fit, a condition that the offender shall be
subject to supervision for such period as the Court specifies, not exceeding the
period specified in or under subsection (3), by a person to be nominated by the
Chief of Police.
(2) The making of an order under this section shall not limit or affect the
power of the Court, under any enactment applicable to the offence, to make any
order for the payment of costs, damages, or compensation, or for the restitution of
any property, notwithstanding that the offender is not sentenced on conviction,
and the provisions of every such enactment shall apply accordingly.
(3) Any person in respect of whom an order is made under this section
may be called upon to appear for sentence within any period specified by the
Court in the order, being a period not exceeding 3 years from the date of the
conviction, or if no period is so specified, within one year from the date of the
conviction.
(4) Where any person is brought up for sentence under this section, the
Court may, after inquiry into the circumstances of the case and the conduct of the
offender since the order was made, sentence or otherwise deal with the offender
for the offence in respect of which the order was made.
281 Conviction without sentence or discharge without conviction
(1) If on any criminal trial the Court thinks that the charge, though proved,
is in the particular case of so trifling a nature or was committed under such
circumstances that no punishment should be imposed, the Court may convict the
accused and discharge him without sentence, either unconditionally or on such
conditions as the Court thinks fit to impose.
(2) If any person who is so convicted and discharged on conditions commits
any breach of those conditions, he shall be guilty of an offence punishable in the
same manner as the offence of which he was so previously convicted.
Niue Act 1966 1195
(3) Without limiting the powers conferred on the High Court by subsection (1), where any person is accused of any offence, the High Court, after inquiry into the circumstances of the case, may discharge him without convicting him, unless by any enactment applicable to the offence a minimum penalty is expressly provided for. A discharge under this subsection shall be deemed to be an acquittal. (4) The High Court, when discharging any person under subsection (3),
may, if it is satisfied that the charge is proved against him, make any order for the payment of costs, damages, or compensation, or for the restitution of any property, that it could have made under any enactment applicable to the offence with which he is charged if it had convicted him and sentenced him, and the provisions of every such enactment shall apply accordingly.
282 Bail
(1) When any person is admitted to or released on bail under this Act or
under any other enactment, he shall, with or without sureties, enter into a bail
bond in favour of the Government in such sum as may be required, conditioned
in such manner as may be appropriate to the particular case and as may be required.
(2) [Repealed by 2004/270]
(3) Every such bond shall be taken by and before a Judge of the High Court,
or the Registrar of the High Court, or, where a person is released on bail under
section 255A, by a constable in charge of the police station.
(4) Every such bond shall be signed by the person admitted to or released
on bail and by his sureties (if any) and the signature of that person and of each of
his sureties (if any) shall be attested by a Judge of the High Court, the Registrar of
the High Court, or a constable.
(5) When any person is admitted to or released on bail, the Judge of the
High Court, or constable admitting or releasing him may require him to deposit
with that Judge, or constable or with the Registrar of the High Court a sum of
money (being not greater than the amount of the recognisance entered into in the
bond). Any such sum so deposited with a Judge, or constable shall, as soon as
reasonably possible after the deposit, be paid by the person with whom it was
deposited to the Registrar of the High Court.
(6) Where any person admitted to or released on bail has fully performed
the conditions of his bond, the bond shall be void and any sum deposited by him
under subsection (5) shall be forthwith repaid to him but without any interest.
(7) Where any person admitted to or released on bail fails to perform any
condition of his bond, the Registrar of the High Court shall fix a place and time at
and on which the High Court may consider the estreat of the bond, and shall, not
less than 7 clear days before the time fixed, cause to be served on the person
admitted or released on bail (if he can be found) and upon the sureties (if any)
notice that, unless at the place and time fixed some person bound by the bond
proves to the satisfaction of the High Court that it ought not to be estreated, the
bond may be estreated.
(8) (a) If at the time and place fixed by the Registrar under subsection (7)
no sufficient cause to the contrary is shown, the High Court, on
proof of non-performance of the bond, may make an order to estreat
the bond to such amount as it thinks fit as to any person bound
thereby upon whom notice is proved to have been served in
accordance with subsection (7) and the whole or any part of any
sum deposited under subsection (5) may (but otherwise without
prejudice to the rights of the Government under the estreated bond)
be forfeited accordingly to the Government.
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(b) If the Court is satisfied that the person admitted to or released on bail cannot be found, it may estreat the bond as against him, notwithstanding that the notice has not been served on him.
(c) No bail bond shall be estreated save by a Judge of the Court.
(9) Any sum payable in connection with any estreated bond shall be
recoverable as if it were a fine.
(10) Where any person has been admitted to or released on bail, any
surety under the bail bond entered into by that person may, at any time and at any
place, without warrant arrest and seize that person while he is not in the custody
of the law and deliver him into the custody of a constable and, on any such delivery,
the surety shall cease to be liable under the bond.
283 [Repealed by 2004/270]
284 Search warrants
(1) Any Judge or the Registrar of the High Court who is satisfied on the
oath of any person that there is reasonable ground for believing that there is in
any building, ship, aircraft, receptable, or place –
(a) Anything which there is reasonable ground to believe will afford
evidence as to the commission of any offence; or
(b) Anything in respect of which any offence has been or is suspected
of having been committed; or
(c) Anything which there is reasonable grounds for believing to be
intended to be used for the purpose of committing any offence –
may, by warrant under his hand, authorise some constable or other officer of the
Niue Public Service to search the building, ship, aircraft, receptable, or place for
any such thing, and to seize and bring it before the person by whom the warrant
has been issued.
(2) Every such warrant shall be executed by day (that is to say, after sunrise
and before sunset), unless the warrant expressly authorises the execution of it by
night.
(3) Every such warrant may be executed by reasonable force if necessary. (4) When any such thing is seized and brought before the person by whom
the warrant was issued, he may either order it to be detained for the purpose of evidence on the trial of any person for any such offence as aforesaid or may direct it to be delivered to any person believed by the person so issuing the warrant to be entitled to it.
(5) No such order of delivery shall in any manner affect the right of any
person to the ownership or possession of the thing.
(6) Any thing so ordered to be detained as evidence of an offence may be
detained under the order for such time as is reasonably necessary for the purpose
of any proceedings instituted or to be instituted in respect of the offence.
284A Power to enter premises to arrest offender or prevent offence
(1) Where any constable is authorised by this Act or by any other enactment
to arrest any person without warrant, that constable, and all persons whom he
calls to his assistance, may enter on any premises, by reasonable force if necessary,
to arrest that person if the constable –
(a) Has found that person committing any offence punishable by
imprisonment and is freshly pursuing that person; or
(b) Has good cause to suspect that that person has committed any such
offence on those premises.
Niue Act 1966 1197
(2) Any constable, and all persons whom he calls to his assistance, may enter on any premises, by reasonable force if necessary, to prevent the commission of any offence that would be likely to cause immediate and serious injury to any person or property, if he believes, on reasonable and probable grounds, that any such offence is about to be committed.
(3) If, in any case to which this section applies, the constable is not in
uniform and any person in actual occupation of the premises requires him to
produce evidence of his authority, he shall before entering on the premises produce
his badge or other evidence that he is a constable.
(4) Nothing in this section shall affect in any way the power of any constable
to enter any premises under a warrant.
285–286 [Repealed by 2004/270]
286A Parole Board
(1) There is established a Parole Board consisting of 3 members who are to
be appointed by Cabinet.
(2) Cabinet may appoint a Parole Board member under subsection (1) for
a term not exceeding 3 years.
(3) Cabinet may appoint the Chairperson of the Board.
(4) A Parole Board member appointed under subsection (1) may be
reappointed.
(5) A Parole Board member appointed under subsection (1) may resign by
written notice given to Cabinet.
(6) The appointment of a Parole Board member appointed under subsection
(1) may be terminated by Cabinet for misconduct, inefficiency or inability.
287 Compensation for loss of property
(1) On the conviction of any person for any offence, the High Court may
order the offender to pay to any person such sum as it thinks fit by way of
compensation for any loss of or damage to property suffered by that person through
or by means of the offence.
(2) Where on the arrest of the offender any money was taken from him,
the High Court may order the whole or any part of the money to be applied to any
such payment.
(3) Any order for payment under this section may be enforced in the same
manner as a fine.
(4) An order under this section shall not affect the right of any person to
recover by civil proceedings any sum in excess of the amount recovered under the
order.
288 Definitions
In this Part –
PART 7
LAW OF EVIDENCE
“Court” includes any person acting in any judicial capacity or having by law or by consent of parties authority to hear, receive, and examine evidence;
“proceedings” includes any action, trial, inquiry, cause, or matter, whether civil or criminal, depending or to be inquired of or determined in or by any Court.
1198 Niue Laws 2006 Vol 3
289 Discretionary power to admit or reject evidence
(1) Subject to this Act, a Court may in any proceedings admit and receive
such evidence as it thinks fit, and accept and act on such evidence as it thinks
sufficient, whether that evidence is or is not admissible or sufficient at common
law.
(2) A Court may in any proceedings refuse to receive any evidence, whether admissible or not at common law, which it considers irrelevant, or needless, or unsatisfactory as being hearsay or other secondary evidence.
290 All witnesses competent
Subject to this Part no witness in any proceedings shall be deemed
incompetent by reason of interest or on any other ground whatever.
291 Evidence of parties and their spouses
In any civil proceedings the parties and the persons on whose behalf the
proceedings are brought or defended, and the husbands and wives of those parties
or persons respectively, shall be competent and compellable to give evidence on
behalf of either or any of the parties to the proceedings.
292 Evidence of accused persons and their spouses
(1) Every person charged with any offence shall be a competent but (except
where the contrary is expressly provided by any enactment) not a compellable
witness upon his trial for that offence.
(2) The wife or husband of any person charged with an offence shall be a
competent witness on the trial of that person, but shall not be a compellable witness,
except in the following cases –
(a) When called as a witness by the accused;
(b) When the offence of which the accused is charged is an offence
against the wife or husband of the accused or against a child of the
accused.
(3) If any witness who under this section is competent but not compellable
gives evidence on any such trial, he shall be liable to cross-examination in the
same manner as if he were a compellable witness, whether the matter on which
he is so cross-examined arises out of his examination in chief or not.
293 Cross-examination as to credit
In any proceedings the Court may limit in any manner and to any extent
which it thinks fit the cross-examination of any witness as to credit, and shall
refuse to permit any such cross-examination which is needlessly offensive or
injurious to the witness, having regard to the nature or gravity of the imputations
made against him, to the importance of his evidence, and to the effect of those
imputations upon his credibility.
294 Criminating questions
Nothing in this Part shall take away or affect the privilege of any witness to
refuse to answer any question which may tend to criminate him.
295 Evidence of prisoners
(1) On application made in that behalf by any person who states on oath
that any prisoner can give material evidence in any proceedings in any Court, a
Judge of the High Court may, by order under his hand, require the prisoner to be
brought up for examination as a witness in the proceedings.
Niue Act 1966 1199
(2) In every such case the Judge may, before making such an order, require the applicant to deposit a sum sufficient to pay the expense of bringing up the prisoner, maintaining him while out of prison, and returning him thither, including the expense of his custody in the meantime.
296 Judicial notice of enactments
In all proceedings the Court shall take judicial notice of all enactments.
297 Judicial notice of seals
In every proceeding the Court shall take judicial notice of the Seal of Niue
and of the seal of any Court, officer, or other person authorised or required by law
to use any such seal, and of the signature of any Judge or any officer, whether
judicial or not, of the Niue Public Service, and of the Public Seal of New Zealand,
and of the signature of the Governor-General.
298 Power to administer oaths
All Courts are hereby empowered to administer an oath to all such witnesses
as are lawfully called or voluntarily come before them, or to take the affirmation
of any such witness instead of an oath.
299 Form of oath
Except when the person making the oath consents to any other form of
oath, an oath shall, whether in judicial or other proceedings, be made in the
following form:
The officer administering the oath shall address to the person making the
oath the following words: “Do you swear by Almighty God that the evidence you
are about to give touching the matter now before the Court shall be the truth, the
whole truth, and nothing but the truth?”, or words to the like effect, and the person
making the oath shall thereupon, while holding in his hand a copy of the Bible,
Old Testament, or New Testament, indicate his assent to the oath so administered
by uttering the words “I do”, or other words to the like effect.
300 Absence of religious belief
Where an oath has been duly made, the fact that the person making it had
at the time of making it no religious belief shall not for any purpose affect the
validity of the oath.
301 Affirmation may be made instead of oath
Every person shall be entitled as of right to make his solemn affirmation
instead of an oath in cases in which an oath is required or allowed by law, and that
affirmation shall be of the same force and effect as an oath.
302 Form of affirmation
The officer administering an affirmation shall address to the person making
the affirmation the following words: “Do you solemnly, sincerely, and truly declare
and affirm that the evidence you are about to give touching the matter before the
Court shall be the truth, the whole truth, and nothing but the truth?” or words to
the like effect, and the person making the affirmation shall thereupon indicate his
assent to the affirmation so administered by uttering the words “I do” or other
words to the like effect.
1200 Niue Laws 2006 Vol 3
303 Evidence of children without oath
In any proceedings all witnesses who are or appear to be under the age of
12 years may be examined without oath, but any such witness shall in that case be
required before being examined to make the following declaration: “I promise to
speak the truth, the whole truth, and nothing but the truth”, or a declaration to
the like effect; and such a declaration shall be of the same force and effect as if the
witness had taken an oath.
304 Necessity of oath
Subject to this Act, all witnesses in any judicial proceedings, civil or criminal,
shall be examined on oath.
PART 8
EXTRADITION
Extradition from Niue to New Zealand or to the Cook Islands
305 Arrest in Niue of fugitive offenders from New Zealand or the Cook
Islands
When a warrant has been lawfully issued by any competent authority in
New Zealand or in the Cook Islands for the arrest of any person and that person is
suspected of being in Niue or of being about to come into Niue, a Judge of the
High Court may, if he is satisfied in any manner that the warrant has been issued,
and whether it has been produced to him or not, issue his warrant for the arrest of
that person in Niue, and that warrant shall be addressed to such person or persons
as the Judge thinks fit.
306 Order of return to New Zealand or to the Cook Islands
On the arrest of any person under warrant so issued by a Judge of the High
Court, the person so arrested shall be forthwith brought before the High Court,
which may, on production of the original warrant issued in New Zealand or in the
Cook Islands, order the return of that person to New Zealand or to the Cook Islands.
307 Refusal of order in case of hardship
The High Court may refuse to make any such order if, having regard to the
nature of the charge or to the circumstances of the case, the Court is of the opinion
that the return of that person to New Zealand or to the Cook Islands would be the
cause of undue hardship or would otherwise be unjustifiable or inexpedient.
308 Imprisonment or release pending return
Pending the making of any such order of return, or pending the return of
any such person to New Zealand or to the Cook Islands, the High Court may
either commit him to prison or admit him to bail in such manner and on such
conditions as the Court thinks fit.
309 Release on security instead of return
(1) Instead of making such an order of return, the High Court may release
that person on bail conditioned for the payment of such sum or sums of money or
the performance of such conditions with relation to the matters in respect of which
the original warrant was issued in New Zealand or the Cook Islands as the High
Court thinks fit.
(2) On any breach of the conditions on which that person has been so
released, he may be again arrested in Niue under a warrant issued by a Judge of
Niue Act 1966 1201
the High Court, and an order for his return to New Zealand or to the Cook Islands may be made in the same manner as if he had not been so released.
310 [Repealed by 2004/270]
311 Cancellation of order of return
If any person so ordered to be returned to New Zealand or to the Cook
Islands is not returned under the order within a reasonable time after its making,
the High Court may cancel the order.
Extradition from New Zealand to Niue
[Sections 312-317 and 319 are not Niue law]
312 Arrest in New Zealand of fugitive offenders from Niue
When a warrant has been lawfully issued by any competent authority in
Niue for the arrest of any person, and that person is suspected of being in New
Zealand or of being about to come into New Zealand, a District Court Judge in
New Zealand may, if he is satisfied in any manner that the warrant has been issued,
and whether it has been produced to him or not, issue his warrant for the arrest of
that person in New Zealand, and that warrant shall be addressed to such person
or persons as the Judge thinks fit.
313 Order of return to Niue
On the arrest of any person under any warrant so issued by a District Court
Judge, the person so arrested shall be forthwith brought before a District Court
Judge in New Zealand, who may, on the production of the original warrant issued
in Niue, order the return of that person to Niue.
314 Judicial notice of signature to warrant
On making any such order, the District Court Judge may take judicial notice
of the signature to the warrant issued in Niue, and may receive such evidence as
he thinks fit, whether legally admissible in other proceedings or not.
315 Refusal of order in case of hardship
A District Court Judge may refuse to make any such order if, having regard
to the nature of the charge or to the circumstances of the case, the District Court
Judge is of opinion that the return of that person to Niue would be the cause of
undue hardship or would otherwise be unjustifiable or inexpedient.
316 Imprisonment or release pending return
Pending the making of any such order of return, or pending the return of
any such person to Niue, a District Court Judge may either commit him to prison
or admit him to bail in such manner and on such conditions as the District Court
Judge thinks fit.
317 Release on security instead of return
(1) Instead of making such an order of return, the District Court Judge
may release that person on bail conditioned for the payment of such sum or sums
of money or the performance of such conditions with relation to the matter in
respect of which the original warrant was issued in Niue as the District Court
Judge thinks fit.
(2) On any breach of the conditions on which that person has been so
released, he may be again arrested in New Zealand under a warrant issued by a
1202 Niue Laws 2006 Vol 3
District Court Judge, and an order for his return to Niue may be made in the same manner as if he had not been so released.
318 Return to Niue in custody
Any person against whom an order to return to Niue has been so made
shall, so soon as practicable thereafter, be taken from New Zealand to Niue in the
custody of such person as a District Court Judge may approve, and shall on arrival
in Niue be there delivered into lawful custody, to be dealt with in the same manner
as if he had been arrested in Niue under the original warrant issued there for his
arrest.
319 Cancellation of order of return
If any person so ordered to be returned to Niue is not returned under the
order within a reasonable time after the making of it, a District Court Judge or a
Judge of the High Court of New Zealand may cancel the order for his return.
Application of Extradition Act to Niue
320 Extradition Act in force in Niue
Subject to this Act, the Extradition Act 1965, so far as it is applicable, shall
extend to and be in force in Niue.
321 [Repealed by 2004/270]
322 [Repealed by 1974/64]
PART 9
323–334 [Repealed by 1968/68]
PART 10
335–385 [Repealed by 1968/68]
PART 11
386–404 [Repealed by 1968/68]
PART 12
405–414 [Repealed by 1968/68]
PART 13
415–430 [Repealed by 1968/68]
PART 14
431–460 [Repealed by 1968/68]
PART 15
Niue Act 1966 1203
PART 16
LAND DEVELOPMENT
461 Application of this Part
(1) The Court may, with the consent of the Leveki Mangafaoa or a majority
of the owners, by order declare that any Niuean land shall be subject to this Part
for such period as may be defined in that order, and the period fixed by the order
may be extended by the Court.
(2) The Court may by order direct that any land shall be no longer subject
to this Part, and thereupon the Cabinet shall cease to have any right of control in
respect of it, but without releasing the land or any of the parties from any antecedent
liability incurred to or by the Cabinet and the Cabinet may, notwithstanding the
order of the Court, continue to exercise the Cabinet’s powers of creation and
enforcement of charges hereunder so long as any such liability remains.
462 Cabinet may cultivate land on behalf of owners
(1) Where any land has been declared by the Court to be subject to this
Part, the Cabinet may, subject to any lease, licence, or other alienation to which
the land is subject, cultivate, use, and manage the whole or any part or parts of the
land, and may carry on any agricultural business or any other business or
occupation connected with the land and the produce of it on behalf of and for the
benefit of the Leveki Mangafaoa or the owners or such Niueans as may be interested
in the business carried on.
(2) For the purpose of such business, the Cabinet may –
(a) Purchase or otherwise acquire implements or other personal
property as the Cabinet thinks expedient, and may also sell or
otherwise dispose of all crops or other personal property acquired,
held, grown, or produced by the Cabinet in the course of the
business;
(b) Provide, erect, maintain, and equip stores, factories, sheds, offices,
or buildings of any kind;
(c) Do all other things reasonably necessary for the development and
operation of the business, and for the improvement of the land.
(3) The Public Service Commission may employ all such servants or agents
as the Cabinet thinks necessary for this section.
(4) (a) The Cabinet may enter into an agreement in writing with any Leveki
Mangafaoa for farming, or farming on shares, or cropping on shares
with reference to any land being administered or dealt with under
this Part, for such period and upon such conditions as to
remuneration or otherwise as the Cabinet thinks fit.
(b) Any such agreement shall be in the name of the Cabinet and shall
be as effective as if the Cabinet were the legal owner of the land
mentioned in it.
(5) The Cabinet may retain any part of the revenue derived from the
operation of any business as a reserve fund for expenditure in the management of
the business and may, as the Cabinet thinks fit, either expend the reserve fund
accordingly or may apply it or any part of it in any other manner under this Part.
(6) The Cabinet may expend such sum or sums as the Cabinet considers
expedient for the purposes of carrying on any business.
(7) The Cabinet shall be entitled to make a reasonable charge for
administration, and all expenses and liabilities (including administration expenses)
incurred by the Cabinet in the conduct of any business shall be a charge upon the
revenue received by the Cabinet from the business as well as upon the lands on
which the business is conducted.
1204 Niue Laws 2006 Vol 3
(8) The Cabinet may make advances to the Leveki mangafaoa or any Niuean beneficiary in respect of the Cabinet’s share or interest in the profits of the business, either by way of anticipation or otherwise.
(9) (a) All sums of money advanced by the Cabinet whether on account of the business generally or to the Leveki Mangafaoa or any owner, shall constitute a charge upon the land and shall bear interest at such rate as the Cabinet shall determine.
(b) The High Court may make separate orders evidencing any charge in respect of different pieces of land or in respect of different parts of or interests in any piece of land, and for that purpose may apportion, in such manner and in such proportions as it thinks just and equitable, any money secured or proposed to be secured by any charge.
(10)(a) The provisions of any enactment prohibiting the assignment of rents or profits shall apply to all advances or other money which are or may become payable to the Leveki Mangafaoa or any owner in respect of his share or interest in the profits of the business.
(b) No person other than the Leveki Mangafaoa or a Niuean beneficiary
shall be capable of acquiring any beneficial interest except by will
or by order of the Court in any crops or chattels held by the Cabinet
or in any revenue derived or to arise therefrom, nor shall the interest
of the Leveki Mangafaoa or the beneficial interest of any Niuean
beneficiary be liable to be taken in execution or attached or become
assets in the bankruptcy of a Niuean beneficiary.
(11) Nothing in any Act prohibiting alienation by way of security shall
apply to any land that is subject to this Part.
463 Disposal of revenues received by Cabinet
All revenues received by the Cabinet from any land subject to this Part or
from any business carried on under this Part shall be applied as follows –
(a) In defraying the cost of the administration of the land or business;
(b) In paying all rates, taxes, and other assessments and outgoings
payable by the Cabinet in respect of the land or business;
(c) In the discharge, to such extent as may be required or as the Cabinet
thinks fit, of any mortgage, charge, encumbrance, or liability to
which the land or business is subject;
(d) In payment of sums (if any) set apart to meet any charge for
improvements made upon the land;
(e) For any other purposes in connection with the administration,
improvement, and settlement of the land from which the revenues
are derived, or for any other purposes of general utility to the Leveki
Mangafaoa or the Niuean owners of that land;
(f) In paying at the times and in the manner prescribed the residue of
the revenues to the Leveki Mangafaoa or the Niuean owners or other
persons having any estate or interest in the land or business in
accordance with their respective interests.
464 Money to be paid out of or into Niue Government Account
(1) All money expended or advanced by the Cabinet under this Part shall
be paid out of the Niue Government Account.
(2) All money received by the Cabinet under this Part shall be paid into
the Niue Government Account.
Niue Act 1966 1205
465 [Repealed by 1974/74]
466 Interference and obstruction prohibited
(1) Except with the consent of Cabinet, no person shall be entitled to exercise
any rights of ownership in respect of any land that is subject to this Part.
(2) Every person is liable to imprisonment for a term not exceeding 3
months or to a fine not exceeding 0.5 penalty units who –
(a) Wilfully trespasses on any such land, and neglects or refuses to
leave the land after being warned to do so by any person authorised
in that behalf by the Cabinet;
(b) Wilfully obstructs, hinders, or delays any officer, servant, or
workman in the performance or intended performance of his duties
under this Part, or otherwise obstructs or interferes with the carrying
out of any works under this Part.
(3) In any proceedings for an offence against this section in respect of any
land, the fact that the defendant has an interest in the land shall not be a defence.
(4) No proceedings shall be commenced under this section except with
the consent of the Cabinet.
467 [Repealed by 1974/74]
468 –483 [Repealed by 1971/71]
PART 17
484–488 [Repealed by 1968/68]
PART 18
489 Wills of Niueans
PART 19
NIUEAN SUCCESSION
No will made by a Niuean shall have any force or effect with respect to his interest in Niuean land.
490 Succession to deceased Niueans
Subject to Part 8 of the Niue Amendment Act (No 2) 1968 and to every
other enactment, the persons entitled on the death of a Niuean to succeed to his
estate (other than an interest in Niuean land) so far as not disposed of by his will,
and the shares in which they are so entitled, shall be determined under Niuean
custom, so far as such custom extends, and shall be determined, so far as there is
no Niuean custom applicable to the case under the Administration Act 1969.
491 Niuean land not to vest in administrator
The interest of a Niuean in Niuean land shall in no case vest in his
administrator by virtue of letters of administration.
492–496 [Repealed by 1968/68]
497 Niuean land not assets for payment of debts
The interest of any person in Niuean land shall not upon his death be assets
available for the payment of his debts and liabilities, whether to the Crown or
otherwise, but this section shall not affect the operation of any charge to which
that land is subject at the death of the deceased.
1206 Niue Laws 2006 Vol 3
498 [Repealed by 2004/270]
499 [Repealed]
PART 20
TRUSTEES FOR NIUEANS
500 Definition of “person under disability”
In this Part, “person under disability” means any person who is a minor, or
of unsound mind, or in prison, or who is subject to any physical or mental infirmity
which in the opinion of the Court renders him unfit to have the management of
his property.
501 Trustee orders
If any Niuean, being a person under disability, is entitled to any interest in
any property (other than an interest in Niuean land), the Court may on the
application of that person or of any other person, make an order (a trustee order)
appointing any person or persons to be the trustee or trustees of the person so
under disability in respect of the property or any part of it to which he is so entitled
(the trust property).
502 Matters to be set forth in trustee orders
(1) Every trustee order shall state the nature of the disability of the
beneficiary and, if that disability consists in minority, the order shall state the age
of the beneficiary.
(2) Except where the order states the day of the birth of the beneficiary,
any such statement as to his age shall be construed as meaning that he attained
that age on the date of the order, but it shall not be necessary for the Court in
making any such order to make any inquiry as to the day of the birth of the
beneficiary.
(3) Any such statement as to the age of the beneficiary may be amended,
but, notwithstanding any error in that statement, every act done at any time by
the trustee shall be as valid as if the statement for the time being contained in the
trustee order was correct, and no act done by the beneficiary in respect of the
property comprised in the order after the date indicated in it as the date of his
majority shall be invalidated on the ground that the beneficiary was not in fact of
the age of 21 years.
(4) Every trustee order shall define the nature of the property in respect of
which it was made and the nature of the interest of the beneficiary in it.
503 Appointment of new trustees
(1) Where it is made to appear to the Court that it is expedient to appoint
a new trustee, the Court may, by a trustee order, appoint a new trustee or new
trustees either in substitution for or in addition to any existing trustee, and whether
there is any existing trustee or not at the time of making the order.
(2) Any person so appointed shall, unless otherwise provided by the order,
have the same powers as if appointed by the original order.
504 Orders restricting powers of trustees
By a trustee order or by any subsequent order, the Court may prohibit or
restrict the exercise by the trustee of any powers which would otherwise be vested
in him under this Act, and the Court may remove or vary any such prohibition or
restriction.
Niue Act 1966 1207
505 Cancellation of trustee orders
The Court may make an order cancelling or varying a trustee order.
506 Determination of trustee orders
When a trustee order has been made on the ground of the minority of the
beneficiary, the powers of the trustee shall cease and determine, without any order
in that behalf, so soon as the beneficiary attains his majority, and the trustee order
shall thereupon cease to be in force.
507 Trust property not to vest in trustee
Notwithstanding anything to the contrary in any rule of law or equity, the
trust property shall not vest in a trustee appointed by a trustee order, but shall
remain vested in the beneficiary for the same estate and interest as if no such
order had been made.
508 Administration of property by trustee
Subject to this Part and to any order of the Court to the contrary, every such
trustee shall be entitled to the possession, receipt, and administration of the trust
property and of all revenues to be derived from it, and he shall in the exercise of
all powers conferred upon him by this Act be deemed to be the agent of the
beneficiary.
509 Alienation of property by trustee
(1) Except so far as expressly provided by order of the Court, any such
trustee shall, in respect of the alienation or other disposition of any property
included in the trust (other than an alienation or disposition by will), represent
the beneficiary, and may accordingly exercise in the name and on behalf of the
beneficiary all powers in respect of the alienation or other disposition of any such
property which the beneficiary might himself have exercised had he been under
no disability and had no such trustee been appointed.
(2) So long as any trustee order remains in force, the beneficiary shall not
be capable of exercising any powers in respect of the alienation or disposition of
the trust property, other than a disposition by will if he is possessed of testamentary
capacity.
510 Powers of trustee
Except so far as otherwise provided by order of the Court, any such trustee
may do, in the name and on behalf of the beneficiary, all things in relation to the
trust property which he considers necessary or expedient for the advantageous
administration of that property in the interests of the beneficiary, and which the
beneficiary could himself have done had he been under no disability and had no
such trustee been appointed.
511 Expenditure of revenues of trust property
(1) The Court may make such orders for the payment or expenditure of
any of the revenues of the trust property to or for the benefit of the beneficiary, or
for the maintenance of the children, adopted children, wife, or husband of the
beneficiary.
(2) The right of the beneficiary to the receipt or expenditure of any such
money, and his right in any other respect to control the administration of the trust,
shall at all times while the trustee order remains in force be subject to the discretion
of the trustee and to the order of the Court.
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512 Enforcement of trusts
The Court shall have jurisdiction to enforce, by injunction or otherwise, as
against any trustee under this Part, the obligations of his trust, and to hear and
determine as against any such trustee any pecuniary claim arising out of a breach
of trust.
513 Co-trustees must act jointly
When 2 or more trustees hold office under any trustee order in respect of
the same property, those trustees must act jointly in the exercise of the trust, and
no such powers shall be exercisable by less than the full number of trustees so
appointed, notwithstanding the existence of any vacancy in that number.
514 Remuneration of trustees
Any such trustee may be allowed out of the revenues or proceeds of the
trust property, by way of remuneration for his services in administering that
property, such reasonable sums as the Court orders, in addition to all costs, charges,
and expenses incurred by him in the execution of his trust.
PART 21
MARRIAGE
515 Prohibited degrees of consanguinity or affinity
(1) A marriage forbidden by the following Schedule is void—
Niue Act 1966 1209
SCHEDULE
Forbidden Marriages
1 A man may not marry his— 2 (1) Grandmother
(2) Grandfather ’s wife (3) Wife’s grandmother (4) Father ’s sister
(6) Mother ’s sister
(6) Mother
(7) Stepmother
(8) Wife’s mother
(9) Daughter
(10) Wife’s daughter
(11) Son’s wife
(12) Sister
(13) Son’s daughter
(14) Daughter ’s daughter
(15) Son’s son’s wife
(16) Daughter ’s son’s wife
(17) Wife’s son’s daughter
(18) Wife’s daughter ’s daughter
(19) Brother ’s daughter
(20) Sister ’s daughter
A woman may not marry her—
3 This Schedule shall apply whether the relationship is by whole blood or by the half blood.
4 In this Schedule, “wife” includes a former wife, whether she is alive or deceased, and
whether her marriage was terminated by death or divorce or otherwise; and “husband” has a
corresponding meaning.
(2) Notwithstanding subsection (1), any persons who are not within the degrees of consanguinity but are within the degrees of affinity so prohibited may apply to the Court for its consent to their marriage, and the Court may make an order dispensing with that prohibition so far as it relates to the parties to the application, and, if such an order is made, that prohibition shall cease to apply to the parties.
516 Marriages to take place before Marriage Officer
(1) Every marriage shall take place in the presence of a Marriage Officer
and of at least 2 other witnesses.
(2) In this section, “Marriage Officer” means any Judge or Commissioner
of the High Court, the Registrar of the High Court, or any person appointed as a
Marriage Officer under subsection (3).
(3) The Cabinet may appoint any minister of religion, or person whom it
believes to be a fit and proper person, as a Marriage Officer.
(4) A marriage celebrated other than in accordance with this section is void.
517–518 [Repealed by 2004/270]
519 Offence
If any person acts as a Marriage Officer in Niue without being qualified by
office or appointment so to act, he is liable to imprisonment for a term not exceeding
3 years.
1210 Niue Laws 2006 Vol 3
520 Notice of marriage
(1) A Marriage Officer shall not solemnise or record any marriage, unless
notice in writing of the intention of the parties to enter into the marriage has been
given to the Marriage Officer by one of the parties at least 2 clear days before the
day of the marriage.
(2) On receipt of that notice, the Marriage Officer shall publish it in such
manner as he thinks sufficient to give due publicity to the intended marriage.
(3) On every such notice, there shall be payable by the person giving it
such fee (if any) as may be prescribed by regulations, and all such fees shall be
payable into the Niue Government Account.
(4) No marriage shall be invalidated by any breach of the requirements of
this section.
521 Mode of solemnisation
Every marriage shall, subject to this Part, be solemnised in such manner as
the Marriage Officer thinks fit.
522 Record of marriage
Every marriage shall, at the time of the solemnisation, be recorded in writing
by the Marriage Officer in the form and with the several particulars prescribed by
regulations under this Act, but no marriage shall be invalidated by any error or
defect in that form or in the particulars so required to be recorded.
523 Signature of record
The aforesaid record of every marriage shall be signed by the parties, and
by 2 witnesses, and by the Marriage Officer, all being present at the same time,
and when the record has been so signed the marriage shall be deemed to be fully
solemnised and shall take effect.
524 Transmission of record
The record of every marriage shall be forthwith delivered by the Marriage
Officer to the Registrar of the Court, and shall be preserved by the Registrar in the
same manner as if it was a record of the High Court.
525 Minimum age of marriage
A Marriage Officer shall not solemnise or record any marriage, unless the
husband is at least 18 years of age and the wife is at least 15 years of age, but no
marriage shall be invalidated by a breach of this section.
526 Marriage of minors
(1) A Marriage Officer shall not solemnise or record the marriage of any
man under the age of 21 years or of any woman under the age of 19 years without
the consent of one of the parents of the man or woman, if either of those parents is
alive and resident in Niue.
(2) A Judge of the Court may in any case, if he thinks fit so to do, grant
exemption from the requirements of this section.
(3) No marriage shall be invalidated by any breach of this section.
527 Offence by Marriage Officer
If any Marriage Officer commits any breach of the provisions of this Part,
or signs any record of a marriage containing any statement known by him to be
false, he is liable to a fine not exceeding 1 penalty unit.
Niue Act 1966 1211
528 Signature of false record by party or witness
Every party or witness to a marriage who signs a record of it containing
any statement known by him or her to be false is liable to imprisonment for a term
not exceeding 6 months or to a fine not exceeding 0.5 penalty units.
529 Misrepresentation as to facts to procure marriage
Every person who, by any wilful misrepresentation made to a Marriage
Officer, procures or attempts to procure the solemnisation by that officer of any
marriage is liable to imprisonment for a term not exceeding one year.
530 [Repealed by 2004/270]
PART 22
DIVORCE
531 Nullity of marriage
The Court shall in proceedings for nullity of marriage have and exercise in
Niue the same jurisdiction as is possessed for the time being by the courts in New
Zealand.
532 [Repealed by 2004/270]
533 Domicile of a married woman
The domicile of a married woman shall be determined as if she were an
adult and single.
534 Grounds of divorce and jurisdiction of High Court
(1) Subject to subsection (2), any married person (the petitioner) may take
proceedings in the High Court for the dissolution of his or her marriage with the
other party to the marriage (hereinafter called the respondent) on any ground
specified in subsection (3).
(2) No proceedings for divorce may be taken in the High Court unless—
(a) The petitioner or the respondent is at the commencement of the
proceedings domiciled in Niue; and
(b) Where the ground alleged in the petition is one of those specified
in subsection (3) (l)(m) and (n), has been domiciled or resident in
Niue for 2 years at least immediately preceding the filing of the
petition.
(3) A petition for divorce may be presented to the High Court on one or
more of the following grounds, and on no other ground –
(a) That the respondent has since the solemnisation of the marriage
been guilty of adultery;
(b) That the respondent, being the wife of the petitioner, has since the
solemnisation of the marriage and without the consent of the
petitioner been artificially inseminated with the semen of some man
other than the petitioner;
(c) That the respondent without just cause has wilfully deserted the
petitioner and without just cause has left the petitioner continuously
so deserted for 3 years or more;
1212 Niue Laws 2006 Vol 3
(d) That the respondent—
(i) Being the petitioner ’s husband, has for 3 years or more been
an habitual drunkard or drug addict, and has either habitually
left his wife without means of support or habitually been guilty
of cruelty towards her; or
(ii) Being the petitioner ’s wife, has for a like period been an habitual
drunkard or drug addict, and has either habitually neglected
her domestic duties and rendered herself unfit to discharge
them or habitually been guilty of cruelty towards him;
(e) That the respondent has since the solemnisation of the marriage
been convicted of attempting to commit the murder of the petitioner
or any child (of any age) of the petitioner or respondent, or has
been convicted of any offence under section 151 against the
petitioner or any such child;
(f) That the respondent has since the solemnisation of the marriage
been convicted of incest, attempted rape or assault with intent to
commit rape against any child (of any age) of the petitioner or
respondent, or of sexual intercourse or attempted sexual intercourse
with any such child under 15 years of age;
(g) That the respondent, being the husband of the petitioner, has
committed rape or buggery since the solemnisation of the marriage;
(h) That the respondent has since the solemnisation of the marriage
been convicted of murder;
(i) That the respondent is a person of unsound mind and is unlikely to
recover, and has been a patient for a period or periods of not less in
the aggregate than 7 years within the period of 10 years immediately
preceding the filing of the petition;
(j) That the respondent is a person of unsound mind and is unlikely to
recover, and has been continuously a person of unsound mind for
a period of 7 years immediately preceding the filing of the petition,
and has been a patient during the final 3 years of the said period of
7 years;
(k) That the respondent is a person of unsound mind and is unlikely to
recover, and has been a patient for a period of 5 years immediately
preceding the filing of the petition;
(l) That the petitioner and respondent are parties to an agreement for
separation, whether made by deed or other writing or orally, and
that the agreement is in full force and has been in full force for not
less than 3 years;
(m) That—
(i) the petitioner and respondent are parties to a decree, order, or
judgment made in Niue or in any country if that decree, order,
or judgment has in that country the effect that the parties are
not bound to live together; and
(ii) that decree of separation, separation order, or other decree,
order, or judgment is in full force and has been in full force for
not less than 3 years;
(n) That the petitioner and respondent are living apart and are unlikely
to be reconciled, and have been living apart for not less than 7 years.
Niue Act 1966 1213
535 Grounds of refusal of divorce
If the Court is of opinion—
(a) That, in the case of a petition based on a matrimonial wrong, the
petitioner ’s own habits or conduct induced or contributed to the
wrong complained of so as to disentitle the petitioner to a divorce
or the petitioner has condoned the wrong complained of; or
(b) That, in the case of the adultery of the respondent, the petitioner
has been in any manner accessory to or has connived at the
adultery—
the Court shall dismiss the suit; but, subject to section 536, in all other cases, if the
Court is satisfied that the case of the petitioner has been established, the Court
shall pronounce a decree of divorce.
536 Discretion to refuse decree in certain cases
(1) (a) Where a petition for divorce is presented on any of the grounds
specified in section 534 (3) (l) (m) and (n), and the petitioner has
proved his or her case, the Court shall have a discretion whether or
not to grant a decree of divorce.
(b) The Court shall not, in the exercise of that discretion, refuse to grant
a decree by reason only of the adultery of either party after their
separation.
(2) The Court may dismiss any petition for divorce if there has been
collusion between the petitioner and the respondent with intent to cause a
perversion of justice.
537 Co-respondent as a party
In any proceedings in the Court for divorce on the ground of adultery, the
Court may make the person with whom the respondent is alleged to have
committed adultery a co-respondent in the proceedings.
538 [Repealed by 2004/270]
539 Agreement no bar to divorce
No covenant or agreement between the parties to proceedings for divorce
shall operate as a bar to the institution or prosecution of the proceedings.
540 No appeal to Court of Appeal
No appeal shall lie to the Court of Appeal from any decree of the Court for
divorce.
541–542 [Repealed by 2004/270]
543 Order for maintenance of divorced wife
(1) When a decree of divorce is made by the Court, the Court may, in and
by the decree, order the husband to pay towards the future maintenance of his
wife (whether petitioner or respondent), so long as she remains unmarried, a
reasonable sum at such times and in such manner as the Court thinks fit.
(2) Every such order shall be deemed to be a maintenance order under
Part 23, and all the provisions of that Part shall, so far as applicable, apply to it
accordingly.
(3) In addition to or instead of making an order under subsection (1), the
Court may, when making any such decree, order the husband to pay to the wife
such capital sum as the Court thinks fit.
1214 Niue Laws 2006 Vol 3
544 Order as to custody of children
The Court may in and by any decree of divorce or of nullity, or at any time
and from time to time thereafter, make such order as it thinks fit as to the custody
of the children of the marriage.
545 Molestation of divorced wife by her husband
If, at any time after a decree of divorce or of dissolution of a voidable
marriage has been pronounced at the suit of the wife, her former husband—
(a) Commits any trespass by entering or remaining upon or in any
land, house, or building which is in her occupation or in which she
dwells or is present; or
(b) Attempts or threatens to commit any such trespass; or
(c) Molests her by watching or besetting her dwellinghouse or place
or business, employment, or residence, or by following or waylaying
her in any road or other public place—
he is liable to imprisonment for a term not exceeding 3 months or to a fine not
exceeding 0.5 penalty units.
546 [Repealed by 2004/270]
547 Interpretation
In this Part –
PART 23
MAINTENANCE AND AFFILIATION
“adequate maintenance” means maintenance reasonably sufficient for the necessities of the person to be maintained, irrespective of the means or ability of the person who is bound to afford such maintenance;
“child” means a person under the age of 16 years;
“defendant” means any person against whom a maintenance order or
affiliation order is or has been made under this Part or is applied for
under this Part;
“destitute person” means any person unable, whether permanently or
temporarily, to support himself by his own means or labour;
“maintenance” includes lodging, feeding, clothing, teaching, training,
attendance, and medical and surgical relief;
“maintenance order” means an order under this Part for the payment of
money for or in respect of the past or future maintenance of any person.
548 [Repealed by 2004/270]
549 Applications
Any application to the Court for or in relation to a maintenance order or an
affiliation order may, except where otherwise expressly provided, be made either
by the person in whose favour the order is to be or has been made or by any other
person.
550 [Repealed by 2004/270]
Niue Act 1966 1215
551 Affiliation orders
(1) On application made to the Court by or by the authority of a woman
who is the mother of a child or who is with child, the Court may, if it is satisfied
that the defendant (not being her husband) is the father of that child, make an
order (herein called an affiliation order) adjudging the defendant to be the father
of that child accordingly.
(2) No affiliation order shall be so made unless the application is made
before or within 6 years after the birth of the child, unless the defendant has
contributed to or made provision for the maintenance of the child, or has since the
birth of the child cohabited with the mother as man and wife, in which case the
application may be made at any time after the expiration of the said period of 6
years, if within 2 years immediately preceding the application the defendant has
contributed to or provided for the maintenance of the child or has so cohabited
with its mother.
(3) If at any time the defendant has been absent from Niue, the period of
his absence shall not be counted in computing the respective periods of 6 years or
2 years.
(4) No such application shall be made unless the child is under 16 years of
age at the time of the application.
552 Evidence
(1) The evidence of the mother of the child or of any woman who is with
child as aforesaid shall not be necessary for the making of an affiliation order.
(2) No person shall be adjudged to be the father of a child upon the evidence
of the mother or of a woman who is with child as aforesaid, unless her evidence is
corroborated in some material particular to the satisfaction of the Court.
553 Maintenance order in favour of illegitimate child
When an affiliation order has been made by the Court against any person
as the father of a child, whether already born or not, the Court may, at the same
time or at any time thereafter, make a maintenance order in favour of the child
against the person so adjudged to be the father of the child.
554 Maintenance order against father in favour of child
(1) The Court may make a maintenance order against the father of any
child (not being an illegitimate child) in favour of that child if the Court is satisfied
that the father has failed or intends to fail to provide that child with adequate
maintenance.
(2) When the father and child are living apart from each other, and the
Court is satisfied that there is reasonable cause for the child continuing so to live
apart from the father, the father shall not be deemed to have made provision for
the adequate maintenance of the child merely by reason of the fact that he is ready
and willing to support the child if and so long as the child lives with him.
555 Maintenance order against mother in favour of child
(1) The High Court may make a maintenance order in favour of a child
against the mother of that child, if it is satisfied that the mother is of sufficient
ability in that behalf and has failed or intends to fail to make provision for the
adequate maintenance of the child.
(2) When the mother and child are living apart from each other, and the
Court is satisfied that there is reasonable cause for the child continuing so to live
apart from the mother, the mother shall not be deemed to have made provision
1216 Niue Laws 2006 Vol 3
for the adequate maintenance of the child merely by reason of the fact that she is ready and willing to support the child if and so long as the child lives with her.
556 Maintenance order against husband
(1) The Court may make a maintenance order against a husband in favour
of his wife, if it is satisfied that the husband has failed or intends to fail to provide
his wife with adequate maintenance.
(2) Unless the Court is satisfied that the wife is a destitute person, no
maintenance order shall be made against the husband if it is proved that he is not
of sufficient ability to contribute to her maintenance.
(3) When the husband and wife are living apart from one another and the
wife has, in the opinion of the Court, reasonable cause for refusing or failing to
live with her husband, the husband shall not be deemed to have provided her
with adequate maintenance merely by reason of the fact that he is ready and willing
to support her if and so long as she lives with him.
557 Maintenance order against wife
(1) The Court may make a maintenance order against a married woman in
favour of her husband, if it is satisfied that the husband is a destitute person and
that his wife is of sufficient ability to contribute to his maintenance.
(2) No such order shall be made if the Court is satisfied that there is
reasonable cause for the failure of the wife to contribute to the maintenance of her
husband.
558 Maintenance order against any person in favour of father or mother
The Court may make a maintenance order against any person in favour of
the father or mother of that person, if it is satisfied that the father or mother, is a
destitute person and that the defendant is of sufficient ability to contribute to the
maintenance of that destitute person.
559 Disobedience to maintenance order
Every person who disobeys a maintenance order commits an offence and
is liable on conviction to a fine not exceeding 1 penalty unit and imprisonment for
a term not exceeding 6 months.
560 Maintenance money a debt
All money due under a maintenance order shall constitute a debt due by
the defendant to the person to whom the money is payable under the terms of the
order.
561 Order in favour of non-residents
A maintenance order may be made in favour of any person otherwise
entitled to it although not present or resident in Niue.
562 Order against non-residents
A maintenance or affiliation order may be made against any defendant
otherwise liable although not present or resident in Niue.
563 Orders in absentia
If the Court is satisfied that a defendant is absent from Niue, or that his
residence is unknown, or that he cannot be found, the Court may hear and
determine the application ex parte and make a maintenance order or affiliation
order accordingly.
Niue Act 1966 1217
564 Repeated applications
The dismissal of an application for a maintenance order or affiliation order
shall not, unless the Court so orders, be a bar to the making of a further application
in the same matter against the same defendant.
565 Payments not to be made in advance
(1) No money payable under a maintenance order shall, without the
precedent consent of a Judge of the High Court, be paid more than one year in
advance of the due date of it.
(2) If any money is paid in breach of this section, it shall not be taken into
account in any proceedings for the enforcement of the maintenance order or for
the punishment of any disobedience to it; but no money so paid in breach of this
section shall be recoverable by the person by whom it was paid.
566 Cancellation, variation, and suspension of orders
(1) The High Court may at any time make an order cancelling an affiliation
order, or cancelling, varying, or suspending any maintenance order or substituting
a new maintenance order, on the grounds—
(a) That the order was obtained by fraud or perjury; or
(b) That since the making of the order new and material and evidence
has been discovered; or
(c) That since the making of the order the circumstances have so
changed that the order ought to be so cancelled, varied, or
suspended, or that a new order ought to be substituted for it.
(2) The power hereby conferred to cancel or vary an order shall include
the power to remit wholly or in part any arrears due under the order, and any
such arrears may be remitted either on the grounds hereinbefore in this section
mentioned or, if the Court thinks fit, on the ground that the defendant is not of
sufficient ability to pay them.
567 Payment of maintenance money
Any maintenance order may direct the money payable under it to be paid
either to the person in whose favour the order is made or to any other person on
behalf of that person.
568 Security for obedience to maintenance orders
(1) Whenever a maintenance order is made, the High Court may, by the
same order or by order made at any later time, direct the defendant to give security
for his obedience to the maintenance order.
(2) Every such security shall, as the Court determines, be either the payment
into Court of such sum of money, not exceeding 4 penalty units, as the Court
directs, or the giving of a bond to Her Majesty with one or 2 sureties to be approved
by the Court in a sum not exceeding 4 penalty units, conditioned for due obedience
to the maintenance order.
(3) When such security has been required, the Court may commit the
defendant to prison until the order requiring security has been complied with,
but no person shall be so detained in custody for a longer period than 6 months.
(4) All money so paid into Court or recovered by suit or otherwise under
any such bond shall be available, under the direction of the Court, for the
satisfaction of all claims under the maintenance order.
(5) The Court may, on being satisfied that the security is no loner required,
order any amount so paid into Court to be repaid to the defendant, or cancel any
bond so given.
1218 Niue Laws 2006 Vol 3
569 Operation of agreements
No agreement shall be effective so as to take away or restrict any liability
imposed on any person by this Act to contribute to the maintenance of any other
person, or affect the operation of any maintenance order or the right of the High
Court to make any such order.
570 Purport and duration of maintenance orders
(1) Every maintenance order shall be an order for the periodical payment,
at such times and in such manner as the Court thinks fit, of such sum of money as
the Court thinks reasonable.
(2) The intervals between the successive payments shall not exceed 28 days.
(3) When any such order is made in respect of the maintenance of a child,
the order shall cease to be in force so soon as that child attains the age of 16 years.
571 Order for past maintenance
Any maintenance order may require the defendant, in addition to making
such periodical payments as aforesaid, to pay such sum as the Court thinks
reasonable, not exceeding 1 penalty unit, on account of the past maintenance,
previous to the making of the order, of the person in respect of whose maintenance
the order is made.
Offences
572 Leaving Niue while maintenance money in arrear
(1) Every person against whom a maintenance order has been made is
liable to imprisonment for a term not exceeding 2 years, if, while any money
payable under the order is in arrear and unpaid, he leaves or attempts to leave
Niue without the permission in writing of a Judge of the High Court.
(2) In any prosecution under this section the burden of proving that the
permission of a Judge was so given shall be upon the accused.
573 Leaving Niue after affiliation order and before birth of child
(1) Every person against whom an affiliation order is made before the birth
of the child is liable to imprisonment for a term not exceeding 2 years, if he leaves
or attempts to leave Niue without the permission in writing of a Judge of the
Court at any time within 12 months after the making of the order.
(2) In any prosecution under this section the burden of proving that the
permission of a Judge was so given shall be upon the accused.
574 Leaving Niue with intent to disobey maintenance order
Every person against whom a maintenance order has been made is liable
to imprisonment for a term not exceeding 2 years, if he at any time after it leaves
or attempts to leave Niue with intent to make default in obeying that order.
575 Leaving Niue while failing to maintain wife
(1) Every person is liable to imprisonment for a term not exceeding 2 years,
if he without reasonable cause fails to provide his wife with adequate maintenance
and at any time while failing so to do leaves or attempts to leave Niue without the
permission in writing of a Judge of the High Court.
(2) In any prosecution under this section the burden of proving that the
permission of a Judge was so obtained shall be upon the accused.
Niue Act 1966 1219
576 Leaving Niue while failing to maintain child
(1) Every person who is the father of a child is liable to imprisonment for a
term not exceeding 2 years, if he without reasonable cause fails to provide that
child with adequate maintenance and at any time while failing so to do leaves or
attempts to leave Niue without the permission in writing of a Judge of the High
Court.
(2) In any prosecution under this section the burden of proving that the permission of a Judge was so given shall be upon the accused.
577 Leaving Niue with intent to desert wife or child
Every person who is the husband of any woman or the father of any child
is liable to imprisonment for a term not exceeding 2 years, if he leaves or attempts
to leave Niue with the intention of failing without reasonable cause to make
adequate provision for the maintenance of that wife or child during his absence.
578 [Repealed by 2004/270]
579 Evidence of intent
In any prosecution for an offence against this Part, the fact that the defendant
has at any time within 3 years after leaving Niue habitually made default in obeying
an order of maintenance or in providing his wife or child with adequate
maintenance shall be sufficient evidence, unless the contrary is proved, that the
defendant left Niue with intent so to make default.
580-592 [Repealed by 1968/68]
PART 24
593–599 [Repealed by 1968/68]
PART 25
PART 26
PERSONS OF UNSOUND MIND
Orders of Medical Custody
600 Application by Medical Officer to Court
Any Medical Officer may make application to the Court for an order
committing any person to medical custody under this Part on the ground that
that person is of unsound mind.
601 Medical certificates as to persons of unsound mind
No such order shall be made except on examination of the person alleged
to be of unsound mind, and upon production to the Court of a certificate by the
Director of Health or by 2 Medical Officers that the person in respect of whom the
order is to be made is of unsound mind and that his detention in medical custody
is necessary in his own interests or for the safety of other persons.
602 Order of medical custody
If the Court is satisfied on the examination of the person so alleged to be of
unsound mind, and on hearing such further evidence (if any) as the Court thinks
necessary, that he is of unsound mind and that his detention in medical custody is
necessary in his own interests or for the safety of other persons, the Court may
make an order (hereinafter called an order of medical custody) committing him to
medical custody for such period as the Court thinks fit, not exceeding 6 months.
1220 Niue Laws 2006 Vol 3
603 Renewal of order
Any such order may, whether before or after the expiry of it, be renewed
for such further period, not exceeding 6 months, as the Court on a further
application and certificate as aforesaid thinks fit.
604 Cancellation of order
Any such order may be at any time cancelled by the Court.
605 [Repealed by 2004/270]
606 Arrest and detention of persons committed to medical custody
Any person against whom an order of medical custody has been so made
may thereupon be arrested by any constable or Medical Officer, and shall, while
the order remains in force, be detained at such hospitals or other places in Niue,
and in the custody of such Medical Officer, as may be determined in that behalf
by the Director of Health, either generally or in respect of any particular case or
class of cases.
607 [Repealed by 2004/270]
608 Removal from Niue to New Zealand
When an order of medical custody has been so made against any person,
the High Court may, at the same time or at any time after it while the order remains
in force, issue under the seal of the Court a warrant for the removal of that person
from Niue to New Zealand.
609 Conditions of removal
No such warrant shall be issued unless the Court is satisfied, on the
certificate by the Director of Health or by 2 Medical Officers, and on the examination
of the person alleged to be of unsound mind, that his removal from Niue to New
Zealand is necessary in his own interests or for the safety of other persons.
610 Method of removal
On the issue of any such warrant for the removal of any person to New
Zealand, he may be taken to New Zealand in the custody of any person appointed
in that behalf by a Medical Officer in any ship belonging to Her Majesty or in any
Commonwealth ship or in any aircraft which is approved by the Director of Health
or 2 Medical officers as suitable for the purpose.
611 Admission to hospital of persons removed to New Zealand
(1) Where any person in respect of whom a warrant for removal to New
Zealand is made under section 608 arrives in New Zealand under the warrant,
then, on the delivery to the Superintendent of a hospital within the meaning of
the Mental Health Act 1969 of copies, under the seal of the High Court, of that
warrant, the order of medical custody made in respect of that person under section
602, the application to the Court for the last-mentioned order, and the certificate
produced to the Court under section 601 in respect of that application, the
Superintendent shall receive that person and may detain him in the hospital under
this section.
(2) Where any person is received into a hospital under this section, the
order and warrant made or issued in respect of him under sections 602 and 608
shall be sufficient authority for his detention in the hospital for a period of 7 days.
Niue Act 1966 1221
(3) At any time before the expiration of that period, the Superintendent of the hospital may apply for a reception order under the Mental Health Act 1969 in respect of the person so received into the hospital; and the fact that such an application has been made shall be sufficient authority for the Superintendent to detain that person until the application is finally determined.
[This section is not Niue law.]
612 [Repealed by 2004/270]
613 No committee of estate of person of unsound mind
The High Court may appoint a committee of the person or estate of a person
of unsound mind.
614 Warrant for arrest of persons of unsound mind
Any person against whom an application has been made for an order of
medical custody may be arrested by any constable or other person under a warrant
issued by a Judge or the Registrar of the High Court.
615 Arrest without warrant of persons of unsound mind
Any person believed on reasonable grounds to be of unsound mind and to
be dangerous to himself or others may be arrested without warrant by a constable,
and shall be forthwith brought before a Judge or the Registrar of the High Court,
who may make such order for his custody as is thought fit, pending the making
and determination of an application for an order of medical custody.
615A Commissioner and Justices may act for Judge
(1) Any power conferred by this Act on the Court to make an order under
sections 602, 603, 604 or 608 may be exercised by a Commissioner of the High
Court or any 2 Justices of the Peace if at the time when the power is exercised
there is not present in Niue a Judge who is able to exercise it.
(2) In any such order made by the Commissioner or 2 Justices of the Peace,
a statement that, or to the effect that, to the best of his or their knowledge and
belief, at the time of making of the order there is not present in Niue a Judge who
is able to make it shall be conclusive proof of the jurisdiction of the Commissioner
or Justices as the case may be so far as the requirements of this section are in
question.
(3) Any proceedings commenced before a Commissioner or 2 Justices of
the Peace under this section may be continued and completed before a Judge.
(4) No Commissioner or Justice shall exercise any power under this section
in any matter in which he has signed an application for a reception order or a
medical certificate.
Persons of Unsound Mind Charged with Offences
616 Insane persons not to be tried for offences
If any person on being charged with an offence before the Court is found to
be of unsound mind so that he cannot understand the nature of the proceedings,
he shall not be tried, but the Court shall order him to be detained in prison or in
some other place of security.
1222 Niue Laws 2006 Vol 3
617 Accused persons acquitted on ground of insanity
(1) If any person on his trial for an offence before the Court is found to
have been insane at the time of the commission of the offence, he shall be found
not guilty on the ground of insanity, and the Court shall order him to be detained
in prison or in some other place of security.
(2) A person so detained may apply to the High Court for discharge at any
time but an application may not be made at more frequent intervals than 6 months.
618 Discharge
(1) A person who is detained under section 616 shall not be so detained for
a period of more than one month, and may at any time be discharged by order of
the Court.
(2) Such a person may further be brought before the Court and either tried
for the offence in respect of which he or she is detained or be again detained
under section 616.
619 Orders of medical custody
When any person is so detained, whether in the case of a charge of murder
or manslaughter or otherwise, the Court shall have the same jurisdiction to make
an order of medical custody or to issue a warrant for removal to New Zealand as
in the case of any other person of unsound mind.
620 The defence of insanity in criminal prosecutions
(1) No person charged with any offence shall be acquitted on the ground
of insanity, unless the offence was committed by him while labouring under natural
imbecility or disease of the mind to such an extent as to render him incapable of
understanding the nature or quality of the act done by him or of knowing that the
act was wrong.
(2) A person labouring under specific delusions but in other respects sane
shall not be acquitted on the ground of insanity, unless the delusions caused him
to believe in the existence of some state of things which, if it existed, would justify
or excuse his act.
(3) Every one shall be presumed to be and to have been sane unless the
contrary is proved.
621–633 [Repealed 18/2/1975]
PART 27
634–644 [Repealed by 1968/68]
PART 28
645 Interpretation
PART 29
NIUEAN ANTIQUITIES
In this Part, “Niuean antiquities” includes Niuean relics, articles manufactured with ancient Niuean tools and according to Niuean methods and all other articles or things of historical or scientific value or interest and relating to Niue; but does not include any botanical or mineral collections or specimens.
646 [Repealed by 2004/270]
Niue Act 1966 1223
647 Niuean antiquities to be offered for sale before exportation
It shall not be lawful to remove from Niue any Niuean antiquities without
first offering them for sale to the Cabinet on behalf of Her Majesty for the benefit
of the people of Niue.
648 Power to detain Niuean antiquities attempted to be exported
It shall be the duty of all constables and officers of Customs to seize and
detain any Niuean antiquities attempted to be removed from Niue contrary to
this Part.
649 Exporting Niuean antiquities without permission
(1) Every person who, without the express permission in writing of the
Cabinet, exports from Niue any Niuean antiquities is liable to a fine not exceeding
2 penalty units.
(2) Notice of the intention to export any Niuean antiquities shall be given
by the exporter to the Revenue Manager or other proper officer of Customs at
least 24 hours before shipment.
(3) (a) Any Niuean antiquities entered for export contrary to this Part shall
be deemed to be forfeited, and shall vest in Her Majesty for the
benefit of the people of Niue.
(b) The Cabinet may, after inquiry, cancel the forfeiture if the Cabinet
thinks fit.
650 Power to remove antiquities in certain cases
Nothing in this Part shall be deemed to prevent any person who has offered
any Niuean antiquities for sale as provided by section 647 from removing those
Niuean antiquities from Niue, if he has previously obtained the permission in
writing of Cabinet.
651 Right to copy of antiquities intended to be exported
(1) On any application for permission to export any Niuean antiquities,
Cabinet may, make it a condition of the granting of the application that the owner
allows them to be copied, by photography, cast, or otherwise, in such manner and
by such person as Cabinet directs.
(2) Every such copy shall be the property of Her Majesty for the benefit of
the people of Niue.
652 Cabinet to decide what articles come under this Part
In case any dispute arises as to whether any article or thing comes within
the scope of this Part, that dispute shall be determined by the Cabinet, whose
decision shall be final.
653 [Repealed by 1971/71]
1224 Niue Laws 2006 Vol 3
654–655A [Repealed by 2004/270]
PART 30
CUSTOMS
656 Goods may be imported from New Zealand or Cook Islands free of duty (1) All goods imported into Niue from New Zealand or the Cook Islands, whether the produce or manufacture of New Zealand or the Cook Islands or not,
shall be admitted into Niue free of duty.
(2) Nothing in this section shall apply to—
(a) Goods in respect of which on their exportation from New Zealand
or the Cook Islands any claim for drawback of duty has been made
and allowed;
(b) Goods which by reason of warehousing or for any other reason
have been exported from New Zealand or the Cook Islands without
payment of duty on their importation into New Zealand or the Cook
Islands;
(c) Goods produced in a manufacturing warehouse in New Zealand
or the Cook Islands, unless they have been entered in New Zealand
or the Cook Islands for home consumption and the duty (if any)
paid on it;
(d) Goods subject to any excise duty in New Zealand under the
Customs Acts (as defined in section 3 of the Customs Act 1966) or
in the Cook Islands under the law in force in the Cook Islands, unless
such duty has been paid on it as if they had not been exported;
(e) Goods on which a rate of duty has been paid in New Zealand or
the Cook Islands lower than that to which the goods are subject in
Niue at the time of their importation into Niue.
657 [Repealed by 4/76/1982]
658 [Repealed by 2004/270]
659–670 [Repealed by 2004/270]
671 [Repealed by 1967/67]
PART 31
PART 32
THE LAWS OF NIUE: GENERAL PROVISIONS
Application of the Laws of New Zealand
672–677 [Repealed by 2004/269]
678 Criminal procedure in Niue
In every enactment in force in Niue, every reference to the trial of offences
by way of indictment or by way of summary proceedings shall, in the application
of that enactment to Niue, be construed as a reference to the trial of such offences
by the High Court in the ordinary course of its criminal jurisdiction and procedure.
679–684A [Repealed by 2004/270]
685 [Repealed by 1975/5]
Niue Act 1966 1225
686–689 [Repealed by 2004/270]
689A Misuse of Drugs Act in force in Niue
(1) Subject to subsection (2) and to the provisions of this Act, the Misuse of
Drugs Act 1975 (so far as it is applicable) shall extend to and be in force in Niue.
(2) In the application of the Misuse of Drugs Act 1975 to Niue, unless the
context otherwise requires—
(a) Every reference in that Act to New Zealand shall be read as a
reference to Niue;
(b) Every reference in section 35 of that Act to an extradition treaty for
the time being in force between New Zealand and any foreign
country which is a party to the Single Convention on Narcotic Drugs
1961, as amended by the Protocol amending that Convention done
at Geneva on 25 March 1972, or to the Convention on Psychotropic
Substances 1971, shall be read as a reference to an extradition treaty
for the time being in force between New Zealand and any such
foreign country which extends to Niue;
(c) Every reference to that Act to the Court, or to a Judge, or to a
Magistrate or Justice, shall be read as a reference to the High Court
of Niue or a Judge of that Court or a Commissioner of that Court;
(d) Every reference in that Act to the Minister of Health shall be read
as a reference to the Minister in charge of Health in Niue acting
with the concurrence of the Chief Medical Officer of Niue;
(e) Every reference in that Act to the Medical Officer of Health shall be
read as a reference to the Chief Medical Officer of Niue;
(f) Every reference in that Act to a constable or a member of the Police
shall be read as a reference to an officer of police of the Niue Public
Service;
(g) The references in section 6 of that Act to section 44 (2) of the Criminal
Justice Act 1954 shall be read as references to section 240 of the
Niue Act 1966;
(h) The references in section 18 of that Act to section 198 of the Summary
Proceedings Act 1957 shall be read as references to section 284 of
the Niue Act 1966:
690–705 [Repealed by 2004/270]
706 Limitation of actions
(1) The law of Niue as to prescription and the limitation of actions shall be
the same as that which is in force for the time being in New Zealand.
(2) For the purposes of the law as to prescription and the limitation of
actions, New Zealand shall in Niue be deemed to be parts beyond the seas, and
Niue shall in New Zealand be deemed to be parts beyond the seas.
(3) No right, title, estate, or interest in Niuean land shall be acquired or
lost by prescription or limitation.
Miscellaneous Rules of Law
707 Legal status of married women
(1) Save where otherwise provided by this Act, the legal capacity of a
1226 Niue Laws 2006 Vol 3
married woman, whether contractual, proprietary, testamentary, or of any other kind whatsoever, shall be the same as that of an unmarried woman.
(2) Save in respect of intestate succession, marriage shall not confer on either party any rights to or in respect of the property of the other.
(3) The rule of the common law that for certain purposes a husband and wife are deemed to be one person only is hereby abolished for all purposes, including the law of domicile.
(4) A husband shall not be responsible, as such, for torts committed by his
wife.
(5) Nothing in this section shall affect the validity or operation of a restraint
on anticipation.
708 Legitimacy
(1) Every person, whether born before or after 1 January 1967, and whether
born in Niue or not, and whether or not his parents or either of them were domiciled
in Niue at the time of his birth, shall for all the purposes of the law of Niue be
deemed to be the legitimate child of each of his parents, and all other relationships
in respect of that person shall be deemed to be traced through lawful wedlock
accordingly.
(2) The provisions of this section—
(a) In so far as it affects wills, shall have effect only in relation to the
wills of testators who die after 1 January 1967; and
(b) In so far as it affects instruments other than wills, shall have effect
only in relation to instruments executed after 1 January 1967.
(3) All wills of testators who have died before 1 January 1967, and all other
instruments executed before 1 January 1967, shall be governed by the enactments
and rules of law which would have applied to them if this Act had not been passed.
(4) The estates of all persons who have died intestate as to the whole or
any part of it before 1 January 1967 shall be distributed under the enactments
which would have applied to them if this Act had not been passed.
(5) No action shall lie against any executor or administrator or trustee of
the estate of any person who dies after 1 January 1967 or the trustee under any
instrument executed after 1 January 1967 by any person whose relationship to the
deceased or to any other person or, as the case may be, to the settlor or to any
other person is in any degree traced otherwise than through lawful wedlock, by
reason of the executor or administrator or trustee having made any distribution
of the estate or trust disregarding the claims of the person so related where at the
time of making the distribution the executor, administrator, or trustee had no notice
of the relationship of that person to the deceased or the settlor or any other person.
709 Joint liability
A judgment against one or more of several persons jointly or jointly and
severally liable shall not operate as a bar or defence to an action or other proceeding
against any of those persons against whom judgment has not been recovered,
except to the extent to which the judgment has been satisfied, any rule of law
notwithstanding.
710 Contracts of guarantee
Niue Act 1966 1227
No special promise by any person to answer for the debt, default, or miscarriage of another person, being in writing and signed by the party to be charged with it or some other person lawfully authorised by him, shall be deemed invalid to support an action or other proceedings to charge the person by whom the promise was made by reason only that the consideration for the promise does not appear in writing or by necessary inference from a written document.
711–713 [Repealed by 2004/270]
714 Liability of owners of dogs
In any action for damages for the act of a dog in attacking a human being
or any animal, it shall be no defence that the defendant had no knowledge of the
dangerous or mischievous character of the dog.
715 Distress for rent abolished
(1) Notwithstanding anything to the contrary in any Act, or in any rule of
law or in any lease to the contrary, it shall not be lawful for any person to distrain
for rent.
(2) This section shall extend and apply to leases granted by the Crown.
716 Libel and slander
In any action in the Court for defamation (whether libel or slander), it shall
not be necessary to allege or prove special damage.
717-719 [Repealed by 2004/269]
720 Statutory declarations
(1) Any Judge of the Court, any Commissioner, the Registrar of the Court,
the Controller of Customs, or any law practitioner entitled to practice in the courts
of Niue may take and receive the declaration of any person, in the form in the
Schedule 2.
(2) If any person wilfully makes a declaration that is false in any material
particular, he is liable to imprisonment for a term not exceeding 2 years.
721 [Repealed by 2004/270]
722 Taxes on Niuean land
All taxes imposed by any Act, or other lawful authority upon Niuean land
or upon any person in respect of the ownership or occupation of Niuean land
shall constitute a charge upon that land.
723 [Repealed by 2004/270]
724 Warrants of arrest
(1) Except where other provision is made by law in that behalf, any warrant
for the arrest of any person in Niue may be directed either to any constable or
other person by name, or generally to the constables of Niue.
(2) When such a warrant is directed to constables generally, any such
constable may execute the warrant in like manner as if it was directed specially to
him by name.
(3) Any such warrant may be granted and executed on a Sunday, and either
1228 Niue Laws 2006 Vol 3
by day or night.
(4) Every such warrant shall name or otherwise describe the person against
whom it is issued.
(5) It shall not be necessary to make any such warrant returnable at any
particular time, but it may remain in full force until executed.
725 Trespass ab initio
No lawful entry, seizure, arrest, or other act shall by reason of any unlawful
act subsequent to it be deemed to have been a trespass ab initio.
726 [Repealed]
727 [Repealed by 2004/270]
727A Births and deaths
The Cabinet may make regulations to provide for the registration of births
and deaths and the due administration of it.
728–735 [Repealed by 2004/270]
736 Contributory negligence
Where a person suffers loss or damage as the result partly of personal fault
and partly of the fault of any other person, a claim in respect of that loss or damage
shall not be defeated by reason of the fault of the person suffering the loss or
damage, but the compensation recoverable shall be reduced to the extent the Court
thinks just and equitable having regard to the claimant’s share in the responsibility
for the loss or damage.
737 Protection of intellectual property
A copyright, design, patent, or trademark protected by New Zealand law
shall be accorded the same protection by the courts of Niue as that available in
New Zealand under the laws of New Zealand for the time being in force.
[See also Act 2006/280/section 12]
738 Aerodromes
(1) For the purposes of ensuring the safety of flight operations into, out of,
and in the vicinity of any aerodrome, Cabinet may, by notice published in the
Gazette –
(a) Prohibit, either absolutely or beyond a height specified in the notice, the erection or placing or extension of any building, pole, mast, or other structure of any kind on the land described in the notice;
(b) Limit the height to which trees, shrubs, vegetation, or foliage may be permitted to grow on the land described in the notice;
(c) Limit and specify the purposes for which land described in the
notice may be used, and the species and varieties of trees, shrubs,
vegetation, or foliage which may be grown or permitted to grow
on any land described in the notice;
(2) Where any land, building, pole, mast, or other structure interferes in
any way with the use by aircraft of any aerodrome, Cabinet may, by notice in
writing served on the Leveki Mangafaoa and the occupier of the land and on all
other persons known to have any right or estate in it, require the removal or
lowering of the land or of the building, pole, mast, or other structure to the
Niue Act 1966 1229
satisfaction of the Cabinet within 2 months after service of the notice.
(3) Cabinet may, if there is a failure to comply with any notice served under
subsection (2) take any steps Cabinet considers necessary to ensure compliance
with the terms of the notice.
(4) Cabinet may take any steps the Cabinet considers necessary to remove,
top, or trim any tree, shrub, vegetation, or foliage on any land for the purpose of
ensuring the safety of flight operations into, out of, and in the vicinity of any
aerodrome. Before exercising the powers conferred by this subsection Cabinet
shall give not less than one month’s notice in writing to the j and to the occupier
of the land.
(5) Every person having any right or interest in any land injuriously
affected, or suffering any damage, from the exercise of any powers given by this
section shall be entitled to compensation, which shall be determined by the Court
in the same manner as is prescribed by section 13 of the Niue Amendment Act
(No2) 1968 in the case of land taken under that Act.
(6) In the case of any claim to compensation for restrictions placed upon
the use of land, the Court shall, in assessing compensation, take into account not
only the loss caused by the restrictions but also the cost of labour reasonably
incurred by any Leveki Mangafaoa or occupier in ensuring compliance with the
restrictions.
––––––––––––––––––––
SCHEDULES SCHEDULE 1
[Repealed by 1974/43 (NZ)]
–––––––––––––––
SCHEDULE 2
FORM OF DECLARATION
I,A.B. [Insert place of abode and occupation or description], solemnly and sincerely declare
that [Insert facts]. And I make this solemn declaration conscientiously believing the same
to be true, and by virtue of the Niue Act 1966.
Declared at in Niue this day of 20 before me
A.B.
C.D.
Judge of the High Court of Niue, or Commissioner of the High Court, Registrar of the High Court, member of Cabinet, Finance Secretary of Customs, justice of the Peace, Medical Officer of Niue, Solicitor of the Supreme Court of New Zealand, as the case may be.
1230 Niue Laws 2006 Vol 3
1231
NIUE AMENDMENT ACT (No 2) 1968
1968/132 (NZ) – 1 November 1969
57 Registration of orders affecting title to land
1232 Niue Laws 2006 Vol 3
Contempt of the Land Court
58 Contempt of Land Court defined
59 Penalty for contempt
60 Jurisdiction in contempt
61 Contempt in face of the Land Court
62 Arrest on warrant
63 Conviction by Land Court
64 Enforcement of fine
65 Discharge of persons in contempt
66 Jurisdiction in contempt may be exercised
at any time or place
PART 6
THE COURT OF APPEAL
67-74 [Repealed]
75 Appeals from Land Court
76 Appeals from provisional determinations
as to title to Niuean land
77 Successive appeals in respect of same
matter
78 Powers of Court of Appeal on appeal
79 Dismissal of appeal for non-prosecution
80 Variation deemed part of original order
81 Orders of Court of Appeal
82 Contempt
83 Court of Appeal may order surveys
86 Warrant declaring existing roads
87 Warrants declaring new roads
88 Warrants as to roads to be gazetted
89 Access to land
90 Closing of roads
PART 8
ADOPTION
91 Interpretation
92 Adoption by Niuean custom invalid
93 Adoption by Niuean custom before 1 April
1916 by parent dying before 5 December
1921
94 Validity of adoption registered before 1
April 1916
95 Court may make adoption orders
96 Prohibition of payments in consideration
of adoption
97 Restrictions on making adoption orders
98 Consents to adoptions
99 Effect of adoption order
100 Adoption order may be varied or
discharged
101 Adoption orders under Cook Islands
Amendment Act 1921
PART 9
PART 7
ROADS
84 Definition of “road”
85 Public rights over roads
102-103 [Spent]
104 [Repealed]
SCHEDULE
1 Short title
This is the Niue Amendment Act (No 2) 1968, and shall be read together
with and deemed part of the Niue Act 1966 (the principal Act).
2 Interpretation
For the purposes of the principal Act (including this Act) –
“alienation”, in relation to Niuean land, means the making or grant of any
transfer, sale, gift, lease, licence, easement, profit, mortgage, charge,
encumbrance, trust, or other disposition, whether absolute or limited,
and whether legal or equitable; and includes a contract to make any
such alienation; and also includes the surrender or variation of a lease,
licence, easement, or profit and the variation of the terms of any other
alienation as hereinbefore defined;
“Church purposes” means the provision for the benefit of the adherents of
some Christian denomination of a site for a place of worship, or for a
pastor ’s house, or for a school conducted by the denomination, or for
houses for pupils or teachers of such a school, or for a plantation for
the support of pupils or teachers of such a school, or for any one or
more of such purposes;
Niue Amendment Act (No 2) 1968
1233
“Crown land” means land in Niue vested in the Government, being land that is free from Niuean custom;
“customary title” means title under the customs and usages of Niue; “Land Court” means the Land Division of the High Court;
“Leveki Mangafaoa” means a trustee or guardian of a family having any right, title, estate, or interest in Niuean land;
“Niuean land” means land in Niue held by Niueans according to the customs and usages in Niue;
“public purpose” means all purposes for which money is appropriated by
the Assembly and all lawful purposes and functions of the Government
and includes naval, military, and air defence, education, public health,
fisheries, public buildings, wharves, jetties, harbours, prisons, water
supply, sites for villages, housing purposes, public recreation, land
development, and the burial of the dead.
PART 1
LAND TENURE
3 Classification of land in Niue
All land in Niue is Crown land or Niuean land.
4 [Repealed by 2004/270]
5 [Repealed 10/29/1977]
6 Administration and tenure of land
(1) [Repealed by 2004/270]
(2) The Registrar of the High Court shall proceed to register the title to all
land in accordance with this Act and any other relevant enactment.
7 [Repealed by 2004/270]
8 Grants of Crown land
PART 2
CROWN LAND
(1) Subject to any enactment, the Cabinet may, by warrant, grant in respect of Crown land any lease, licence, easement, or other limited estate, right, or interest, or may accept a surrender of any estate, right, or interest in such land.
(2) In the case of Crown land reserved or set apart for any public purpose,
no such grant shall be made except so far as consistent with that purpose.
9 Crown land may be declared Niuean land
(1) The Cabinet may, by warrant, declare that any Crown land which is
not subject to any lease or to any other right, title, estate, or interest vested in any
person shall be Niuean land, and may in the warrant indicate with what
particularity it thinks fit the Leveki Mangafaoa, the person, or the family or group
of Niueans by whom or on whose behalf it shall be held.
(2) The Land Court shall have jurisdiction to hear and determine any
dispute between Niueans affecting land which has become Niuean land under
subsection (1), and may vary or describe with further particularity the Leveki
Mangafaoa, the person, or the family or group of Niueans by whom or on whose
behalf the land or any part of it shall be held.
1234 Niue Laws 2006 Vol 3
10 Reserves of Crown land for public purposes
Any Crown land may, by warrant of the Cabinet, be set aside as a reserve
for any public purpose, and shall be reserved and used for that purpose accordingly,
but any such warrant may be at any time revoked.
11 Taking of land for public purposes
(1) The Cabinet may by warrant, take any land in Niue for any public
purpose specified in the warrant, and it shall thereupon become absolutely vested
in the Crown as from the date of the warrant, or from any later date specified
therein in that behalf, free from all estates, rights, and interests of any other person
therein, save so far as any such estates, rights, or interests are expressly saved by
the warrant.
(2) Nothing in this section shall authorise the taking of any land occupied
by any building, yard, cemetery, burial ground, or in bona fide occupation as an
ornamental park or pleasure ground, except with the prior consent in writing of
the Leveki Mangafaoa or of the owner or of the Assembly.
(3) The procedure for taking land for public purposes under this section
shall be prescribed by Act.
12 Revocation of warrant taking land
(1) If any warrant under section 11 is made in error, or if the land so taken
or any part of it is found not to be required for the purpose for which it was taken,
Cabinet may, by warrant, at any time before compensation has been paid in respect
of it, revoke the warrant either wholly or as to any part of the land so taken.
(2) A warrant so revoked shall, so far as revoked, be deemed never to have
been made, and the land shall accordingly be deemed to have remained vested in
the persons formerly entitled to it or to their successors in title.
(3) Any person interested in the land and suffering loss or damage by the
making and revocation of any such warrant taking it shall be entitled to
compensation in the same manner, with all necessary modifications, as in the case
of compensation for land taken.
13 Compensation for land taken
(1) When any land has been so taken for a public purpose, all persons
having in respect of that land any right, title, estate, or interest which is extinguished
or divested by the taking of the land shall be entitled to compensation for it from
the Crown.
(2) Cabinet may within 60 days after the date when the land taken has
vested in the Crown, offer to the persons entitled to share in the compensation
such sum by way of compensation as it thinks fit, and, if the offer is not accepted
by all such persons within 30 days after it has been communicated to them, or if
no such offer is made within the 60 days aforesaid, the compensation shall be
assessed and awarded by the Land Court, either on the application of Cabinet or
on application of any person claiming the compensation or share in it.
(3) The compensation so awarded to any person shall constitute a debt
due to him by the Crown, and shall be payable out of the Niue Government
Account.
(4) In awarding any such compensation, the Court may direct that the
compensation, or any part of it, be paid to the Registrar of the Court for distribution
to the persons entitled to it.
(5) The receipt of the Registrar of the Court shall be a sufficient discharge
for any money so paid in the same manner as if that money had been then paid to
the persons entitled to it.
Niue Amendment Act (No 2) 1968
1235
14 Resumption of Crown land for public purposes
(1) The Cabinet may, by warrant, resume for any public purpose specified
in the warrant any Crown land held under lease or otherwise subject to any right,
title, or interest in any other person, and every such lease, right, title or interest
shall in accordance with the tenor of the warrant determine accordingly, save so
far as expressly preserved by it.
(2) All persons entitled to any lease, right, title, or interest so determined
shall be entitled to compensation in the same manner as in the case of land taken
for public purposes.
15 [Repealed]
16 Acquisition of land for public purposes
Cabinet may, for public purposes, purchase or otherwise acquire any Niuean
land or any undivided interest or acquire by grant, assignment, or otherwise any
lease, easement, profit a prendre, or other limited right, title, estate, or interest of or
in any such land.
17 Public purpose for which land held may be altered
Where any land has under this Part or the corresponding provisions of any
former Act been set aside as a reserve or taken or resumed or purchased or
otherwise acquired for any public purpose, the public purpose for which the land
is held may be varied or cancelled by Cabinet by warrant.
18 Control of Crown land by Cabinet
Cabinet may exercise on behalf of the Crown all rights of suit, entry, re
entry, receipt of rents and profits, use, management, control, and possession vested
in the Crown in respect of any Crown land.
21 Ownership in Niuean land
All land in Niue which at 1 November 1969 is held by Niueans under Niuean
custom is hereby vested in the Crown as the trustee of owners of it, and shall be
held by the Crown subject to Niuean custom, and all such land is hereby declared
to be Niuean land accordingly, but shall remain subject to any right which may
have been lawfully acquired in respect of it before 1 November 1969 otherwise
than under Niuean custom.
22 Investigation of title to Niuean land
The Land Court shall have exclusive jurisdiction to investigate the title to
Niuean land and to determine the relative interests of the owners or occupiers of
any such land under this Act or any other enactment.
23 Niuean customs to be recognised
Every title to and estate or interest in Niuean land shall be determined
under Niuean custom and any Act of the Assembly or other enactment affecting
Niuean custom.
1236 Niue Laws 2006 Vol 3
24 No alienation of Niuean land
No person shall be capable of making any alienation of Niuean land or of
any interest in it, except as provided by Part 2 or under any other enactment.
25 For certain purposes Niuean land to be deemed Crown land
(1) For the purpose of preventing trespass or injury to Niuean land the
title to which has not been registered, or of recovering damages for any such
trespass or injury, or for the purpose of recovering possession of any such land
from any person in wrongful occupation of it, an action or other proceeding may
be brought by or on behalf of the Crown as if the land were Crown land.
(2) Nothing in this section shall be so construed as to take away or affect
any jurisdiction conferred upon the Land Court by this Act.
PART 4
LAND FOR CHURCH PURPOSES
26 Vesting of land for Church purposes
(1) The Land Court, if it is satisfied that any Niuean land has been at any
time given or set aside by the Leveki Mangafaoa, or, where there is no Leveki
Mangafaoa, the owners exclusively for Church purposes for the benefit of the
adherents of some Christian denomination, and that the Leveki Mangafaoa or the
owners, as the case may be, are willing that the land shall be exclusively so used
in perpetuity, and that no sufficient alienation or disposition of the land by way of
lease or otherwise has been made in pursuance and furtherance of the said gift or
setting aside, may make an order under this section vesting that land in any body
corporate to hold and administer it for such Church purposes as are specified in
the order.
(2) On application being made under this section, the Court may make
one or more orders, subject to such terms and conditions as the Court thinks fit to
impose, vesting the land in such body corporate as may be nominated by the
applicant.
(3) Every order made under this section shall take effect according to its
tenor, and the land affected by it shall vest in the body corporate without any
transfer or other instrument of assurance.
27 Land vested for Church purposes may be acquired by the Crown
Where any land vested in any body corporate or persons under section 26
is no longer required for the Church purposes specified in the vesting order, the
land may be acquired by the Crown under Part 2 and no compensation shall be
payable to any person in respect of it.
28 Existing records and instruments
All records, instruments, reservations, and generally all acts of authority
relating to the giving or setting aside of land for Church purposes subsisting and
in force at 1 November 1969 may be accepted by the Land Court as evidence in
support of any application under section 26.
Niue Amendment Act (No 2) 1968
1237
PART 5
THE LAND COURT
29 Qualifications of Judges
(1) Subject to articles 41(1) and 43 of the Constitution no person other than
a barrister or solicitor of not less than 7 years practice in Niue or in a country with
substantially identical land tenure system to that of Niue, or as a Judge of the
Land Court of such other country and can demonstrate an appreciation of the
customary land rules and practices of the Niuean people, may be appointed as a
Judge of the Land Court.
(2) With the exception of the Chief Justice who shall be the superior Judge
of the Land Court, other Judges of theCourt shall have seniority among themselves
according to the dates of their appointments as judges. If 2 or more of them are
appointed on the same day, they shall have the seniority according to the
precedence as such judges or, failing any such assignment, according to the order
they take the official oath under article 55C of the Constitution.
(3) Every permanent judge shall have seniority over every temporary
Judge.
30 Qualifications of Commissioners of the Land Court
(1) Subject to articles 46(2) and 47 of the Constitution and to this section
any barrister or solicitor with less than 7 years practice in Niue or any other persons
or officers of the Government of Niue (except the Registrar) possessing the desired
qualities and a good appreciation of Niuean customs in relation to land and other
land related matters and of good standing in the community, may be appointed a
Commissioner of the Land Court.
(2) Notwithstanding subsection (1), none of the following persons shall be
qualified to be appointed as a Commissioner of the Land Court, namely –
(a) A member of the Assembly;
(b) An officer of a political organisation;
(c) An undischarged bankrupt;
(d) A person with a criminal record (except for minor traffic offences);
and
(e) Ministers of religion.
(3) The rules of seniority of judges laid down in section 29 shall apply to
Commissioners as if the reference to judges in that section were a reference to
Commissioner.
31 Salaries and other remuneration
Subject to articles 44 and 49 of the Constitution there shall be paid to the
Chief Justice, Judges and Commissioners out of the Niue Government Account,
without further appropriation than this section the salaries and allowances set
out in the Schedule.
32-37 [Repealed]
38 Registrar and Deputy Registrar of Land Court
(1) There shall be a Registrar of the Court.
(2) The Registrar shall keep or cause to be kept such records of and in
relation to proceedings in the Land Court as may be prescribed.
(3) There may also be appointed a Deputy Registrar who shall, subject to
the control of the Registrar, possess, exercise, and perform the same powers,
functions, and duties as the Registrar, and every reference in any enactment to the
Registrar shall, so far as applicable, extend and apply to the Deputy Registrar
accordingly.
1238 Niue Laws 2006 Vol 3
39 Administrative officers
There shall be appointed in respect of the Land Court such clerks,
interpreters, and other administrative officers as may be necessary.
40 Records of Land Court
The records, plans, and documents relating to the business of the Land
Court shall be kept, and the administrative work of the Land Court shall be carried
on, at such places as the Chief Justice directs.
41 Registers
Registers shall be kept by the Registrar, in which shall be recorded minutes
of all applications made to the Court and of all orders and proceedings made or
had thereon.
42 Seal of the Land Court
(1) The Land Court shall have in the custody of each Judge and the Registrar
a seal which shall be the seal of the Court, and shall be used for sealing documents
which require to be sealed.
(2) The form or forms of seal shall be such as Cabinet determines.
43 Rules of Land Court
(1) The practice and procedure of the Land Court in all matters within its
jurisdiction shall be as prescribed by enactment.
(2) So far as the Rules of the Land Court do not extend, but subject to this
Act, the Court shall in all matters proceed in such manner as seems just and
convenient in that particular case.
44 Applications to Land Court
(1) The jurisdiction of the Land Court in any matter may be exercised on
the application of any person claiming to be interested in it, or on the application
of Cabinet of any person authorised by Cabinet in that behalf.
(2) In the course of the proceedings on any application, the Land Court
may, subject to this Act, Rules of Court, and any other enactment, without further
application and upon such terms as notice to parties and otherwise as the Court
thinks fit, proceed to exercise any other part of its jurisdiction the exercise of which
in those proceedings the Court thinks necessary or advisable.
45 Rehearings
(1) On the application of any person interested, the Land Court may grant
a rehearing of any matter either wholly or as to any part of it.
(2) On any such rehearing the Court may either affirm, vary, or annul its
former determination, and may exercise any jurisdiction which it might have
exercised on the original hearing.
(3) When a rehearing has been so granted, the period allowed for an appeal
shall not commence to run until the rehearing has been disposed of by a final
order of the Court.
(4) Any such rehearing may be granted on such terms as to costs and
otherwise as the Court thinks fit, and the granting or refusal of it shall be in the
absolute discretion of the Court.
(5) No order shall be so varied or annulled at any time after the signing
and sealing of it.
Niue Amendment Act (No 2) 1968
1239
46 Sittings of Land Court
(1) The times and places of the sittings of the Land Court shall be
determined by Rules of Court.
(2) The dates of the commencement of the ordinary sittings of the Court
for the period of 12 months commencing on 1 April in each year shall be published
in the Gazette before the commencement of that period or as soon as practicable
after the commencement of it.
(3) Special sittings may be held at such times and places as may be
appointed by the Chief Justice.
General Jurisdiction of the Land Court
47 Jurisdiction of the Land Court
(1) In addition to any jurisdiction specifically conferred upon the Land
Court by any enactment other than this section, the Land Court shall have exclusive
jurisdiction –
(a) To hear and determine any application to the Land Court relating
to the ownership, possession, occupation, or utilisation of Niuean
land, or to any right, title, estate or interest in Niuean land or in the
proceeds of any alienation of it;
(b) To determine the relative interests of the owners or the occupiers
in any Niuean land;
(c) To hear and determine any application for the appointment of a
Leveki Mangafaoa in respect of any Niuean land;
(d) To hear and determine any claim to recover damages for trespass
or any other injury to Niuean land;
(e) To grant an injunction against any person in respect of actual or
threatened trespass or any other injury to Niuean land;
(f) To grant an injunction prohibiting any person from dealing with or
doing any injury to any property which is the subject-matter of any
application to the Land Court;
(g) To create easements in gross over Niuean land;
(h) To make any order recording the determination of any matter
relating to land or any interest in it, whether provided for in this
Act or other enactment;
(i) To authorise the survey of any land.
(2) The grant of an easement under subsection (1)(g) may, if the Court thinks
fit, be made subject to the payment of compensation in respect of it, or to any
other conditions that the Court may impose.
47A Jurisdiction of Commissioners
(1) Subject to this section, Commissioners shall be empowered to exercise
any or all of the jurisdiction conferred upon the Land Court under section 47 in
addition to any other jurisdiction (whether judicial or administrative) conferred
upon the Judges or Commissioners by any enactment, but excluding those vested
exclusively in the Chief Justice.
(2) Notwithstanding subsection (1) and for the purposes of exercising the
jurisdiction conferred on the Land Court under section 47(1) the following
provisions shall apply –
(a) For the purposes of exercising the jurisdiction under section 47 (1)
(a), (b) and (i) not less than 5 Commissioners sitting together may
exercise such powers;
1240 Niue Laws 2006 Vol 3
(b) In every other case (whether arising out of the remaining provisions of the said section 47(1) or of any other enactment) not less than 2
Commissioners sitting together may exercise such other powers, except where an enactment expressly empowers a Commissioner sitting alone to exercise any of the powers.
(3) All references in this Act or any enactment (including any rules of the
Land Court, regulations, orders or by-laws) to a Judge of the Land Court shall be
construed as applying to the Commissioners of the Land Court within the limits
of the jurisdiction conferred upon them under this section.
47B Commissioners may adjourn or decline jurisdiction
(1) Where proceedings has been commenced before Commissioners, the
Commissioners may, at any time before a final decision has been made –
(a) Decline to deal further with the matter and require that it shall be
dealt with by a Judge; or
(b) Where a question of law has arisen and it is necessary for such
question to be referred to a Judge, the Commissioners may adjourn
the proceedings until such question of law has been dealt with by a
Judge.
(2) Where the Commissioners decline to deal further with the matter, a
Judge shall deal with such matter by way of a rehearing.
47C Decision of majority to be decision of Land Court
(1) In any proceedings before Commissioners, the decision of the Land
Court shall be in accordance with the opinion of the majority of the Commissioners
present.
(2) If the Commissioners present are equally divided in opinion then the
Court shall decline from making a final decision and the opinions of all the
Commissioners present shall be referred to the Chief Justice and whichever opinion
the Chief Justice endorses that opinion shall form the decision of the Court.
47D Appeals from decisions of Commissioners
(1) Any party to any proceedings before Commissioners of the Land Court
may appeal from the judgment of the Commissioners to a Judge of the Land Court.
(2) Every such appeal shall be by way of rehearing and section 45 of this
Act and rule 39 of the Land Court Rules 1969 shall apply accordingly.
47E Attendance of Commissioners at Court
(1) The Registrar shall keep and update a list of Commissioners.
(2) Where the attendance of Commissioners are required at any sitting of
the Court, the Registrar shall summon as many Commissioners as he thinks
necessary to attend.
47F Legality of acts done by person no longer a Commissioner
The legality of anything done by a person while he is a Commissioner shall
not be affected by his ceasing to be a Commissioner, but anything done by any
person after he has ceased to be a Commissioner in purported exercise of any of
the powers or duties of such office shall be void.
47G Action against a Commissioner
No action shall be brought against any Commissioner for any act done by
him in the course of exercising his duties.
Niue Amendment Act (No 2) 1968
1241
48 Jurisdiction conferred on Land Court
(1) In addition to the jurisdiction elsewhere in this Act conferred upon the
Land Court, Cabinet may confer upon that Court, as effectually as if it were
conferred by this Act, jurisdiction in any matter or question affecting exclusively
the rights of Niueans in any property, and thereupon the Land Court shall have
full jurisdiction to determine that matter or question.
(2) Any order of the Land Court in any such matter or question shall be
valid and binding in law, and may be dealt with as nearly as may be in the same
manner as an order or determination of a similar nature made by the Court in the
exercise of the jurisdiction conferred upon it by this Act.
49 Powers of Judges
A Judge sitting alone or any 2 or more Judges sitting together may exercise
all the powers of the Land Court.
50 Proceedings in Land Court before different Judges
Proceedings in the Land Court may be continued before a Judge or Judges
other than the Judge or Judges before whom the proceedings were commenced.
Orders of Land Court
51 Procedure with respect to the making of orders
(1) (a) The substance of every final order of the Land Court shall be
pronounced orally in open court.
(b) Subject to subsection (5), every such order shall take effect according
to its tenor as from the commencement of the day on which it is so
pronounced.
(c) A minute of the order shall forthwith be entered in the records of
the Land Court.
(2) As soon as practicable after the entry in the records of a minute, the
order shall be drawn up in writing under the seal of the Land Court and shall be
signed as hereinafter provided.
(3) Any such order may be signed by the Judge by whom it was made or
by any other Judge of the Land Court.
(4) (a) The order drawn up, sealed, and signed as hereinbefore provided
shall be dated as of the date of the minute and shall relate back to
that date.
(b) The validity and operation of all intermediate orders, instruments,
proceedings, and transactions shall be determined accordingly.
(5) No order shall be questioned or invalidated on the ground of any
variance between the order as so drawn up, sealed, and signed and the minute
thereof; and in the case of any variance the order shall prevail over and supersede
the minute.
(6) Any order may be made subject to the performance of conditions within
such time as may be limited in that behalf in the order and, in any such case, the
Land Court, without further application but subject to the giving of such notices
(if any) as the Land Court may direct, may amend or cancel the order on the
failure to comply with the conditions within the time limited as aforesaid.
(7) No order made under Part 4 shall be sealed and signed until and unless
there has been drawn or endorsed on it a plan of the land affected by it sufficient
to identify the land and the boundaries.
1242 Niue Laws 2006 Vol 3
(8) Except with the leave of the Land Court, no order from which there is a right of appeal shall issue from the office of the Land Court before the time allowed for appeal has expired or, in the event of an appeal, before the appeal has been duly disposed of.
(9) (a) The Land Court may at any time cause duplicates of any order to be sealed and signed.
(b) Every such duplicate shall have the word “Duplicate” written or stamped on it, and shall have the same evidentiary value as the order of which it is a duplicate.
(10) Where by any enactment provision is made for production of an order of the Land Court for purposes of registration or otherwise, it shall be sufficient compliance with that provision if a duplicate of the order, or a copy of it issued under the seal of the Court and certified by a Judge or the Registrar as a correct copy, is so produced.
52 Orders bind all persons interested
Every order of the Land Court determining or affecting the title to Niuean
land or to any estate or interest in it shall bind all persons having any interest in
that land, whether or not they are parties to or have notice of the proceedings in
which the order is made, and whether or not they are subject to any disability.
53 Validity of orders
(1) No order of the Land Court shall be invalid because of any error,
irregularity, or defect in the form thereof or in the practice or procedure of the
Court even though by reason of that error, irregularity, or defect the order was
made without or in excess of jurisdiction.
(2) Nothing in subsection (1) shall apply to any order which in its nature
or substance and independently of its form or of the practice or procedure of the
court was made without or in excess of jurisdiction.
(3) Every order made by the Land Court shall be presumed in all courts
and in all proceedings to have been made within the jurisdiction of the court,
unless the contrary is proved or appears on the face of the order.
54 Annulment of orders obtained by fraud
The Land Court may at any time annul any order obtained by fraud.
55 [Repealed by 2004/270]
56 Enforcement of charges
(1) When any charge is imposed either by this Act or by the Land Court
upon any Niuean land or upon any interest in it, that Court may at any time for
the purpose of enforcing that charge appoint a receiver in respect of the property
so charged.
(2) A receiver so appointed shall be entitled, unless the Land Court
otherwise orders, to the possession of the property and to the receipt of the rents
and profits.
(3) Any person who obstructs any such receiver in the execution of his
office shall be guilty of contempt of the Land Court.
Niue Amendment Act (No 2) 1968
1243
57 Registration of orders affecting title to land
(1) Any order of the Land Court affecting or relating to the title to land
may be registered against the title to that land.
(2) For the purposes of registration the order shall be filed in the Land
Registry Office, and the Registrar shall thereupon, subject to the provisions of any
enactment, register the order accordingly.
(3) Nothing in this section shall affect or modify any special provisions
made in any other enactment for the registration of any such order.
Contempt of Court
58 Contempt of Court defined
(1) Every person is guilty of contempt of the Land Court who –
(a) Knowingly disobeys any order of that Court or of a Judge of it,
otherwise than by making default in the payment of any sum of
money payable under such an order; or
(b) Uses any abusive, insulting, offensive, or threatening words or
behaviour in the presence or hearing of the court; or
(c) Assaults, resists, or obstructs, or incites any other person to assault,
resist, or obstruct, any constable or officer of the court in serving
any process of the court or in executing any warrant or order of the
court or of a Judge of it; or
(d) By any words or behaviour in the presence or hearing of the court,
obstructs in any manner the proper and orderly administration of
justice in the court; or
(e) Does any other thing which elsewhere in this Act or in any other
enactment is declared to be a contempt of the Land Court; or
(f) Aids, abets, counsels, procures, or incites any other person to commit
contempt of the Land Court.
(2) Every person shall be guilty of contempt of the Land Court who –
(a) Having been served with a summons requiring him to appear before
the Land Court at a time and place mentioned in the summons,
neglects or fails without sufficient cause shown by him to appear
or to produce any document which he is so required to produce; or
(b) Whether summoned to attend or not, is present in court and, being
required to give evidence or to produce any document then in his
possession, refuses, without sufficient cause shown by him, to be
sworn or to give evidence or to produce that document; or
(c) Having been sworn to give evidence in any proceedings, neglects
or fails without sufficient cause shown by him to appear at such
time as the Court directs for the purpose of giving further evidence
in the proceedings.
59 Penalty for contempt
Every person who commits contempt of the Land Court is liable to
imprisonment for a term not exceeding 6 months or a fine not exceeding 1 penalty
unit.
60 Jurisdiction in contempt
The offence of contempt of the Land Court shall be punishable either –
(a) By the Land Court in the ordinary course of its criminal jurisdiction;
or
(b) By the Land Court under sections 61 to 64.
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61 Contempt in face of the Court
(1) If the contempt is committed in the presence or hearing of the Land
Court, any Judge there and then sitting in that Court may without order or warrant
direct any constable, officer of the court, or other person to arrest the person so
guilty of contempt, and to bring him before the court.
(2) The Court may thereupon, after giving the person so arrested a
reasonable opportunity of being heard in his defence, by warrant under the seal
of the Court, either commit him to prison for a term not exceeding 6 months or
order him to pay a fine not exceeding 1 penalty unit.
62 Arrest on warrant
If contempt of the Land Court is committed otherwise than in the sight or
hearing of the Court, any Judge of that Court may issue his warrant for the arrest
of the offender or may summon him to appear before the Court.
63 Conviction by Land Court
On the appearance of the offender before the Land Court, the Court may,
after giving him a reasonable opportunity to be heard in his defence, by warrant
under the seal of the Court, either commit him to prison for a term not exceeding
6 months or order him to pay a fine not exceeding 1 penalty unit.
64 Enforcement of fine
If a fine imposed by the Court for contempt under the foregoing provisions
is not paid, the Court may, by warrant under its seal, commit the offender to prison
for a term not exceeding 6 months.
65 Discharge of persons in contempt
Any person so committed to prison for contempt or for default in payment
of a fine may be at any time discharged, and any fine so imposed may be at any
time remitted in whole or in part, either by order of the Land Court or by warrant
under the hand of Cabinet.
66 Jurisdiction in contempt may be exercised at any time or place
Notwithstanding this Act, the jurisdiction hereby conferred upon the Land
Court in respect of contempt of court may be exercised by any Judge of that court
sitting at any time and place which he thinks fit.
67-68 [Repealed]
PART 6
THE COURT OF APPEAL
69-74 [Repealed by 2004/270]
75 Appeals from Land Court
(1) Except as expressly provided to the contrary in this Act, the Court of
Appeal shall have jurisdiction to hear and determine appeals from any final order
of the Land Court, whether made under the principal Act or this Act or under any
other authority in that behalf.
(2) Any such appeal may be brought as of right at the suit of any party to
the proceedings in which the order is made, or at the suit of any person bound by
the order or interested in it.
(3) Every such appeal shall be commenced by notice of appeal given in
the prescribed manner within 2 months after the date of the minute of the order
appealed from.
Niue Amendment Act (No 2) 1968
1245
76 Appeals from provisional determination as to title to Niuean land
(1) By leave of the Land Court, an appeal shall lie to the Court of Appeal
from any provisional or preliminary determination of the Land Court made in the
course of any proceedings for the ascertainment of any right, title, or interest in
Niuean land.
(2) Any such appeal may be brought at the suit of any person who is
interested in the determination appealed from, or who would be bound by a
partition order made under it.
(3) When leave to appeal is so given, the Land Court may either stay further
proceedings in the matter or continue the proceedings, but no final order shall be
made until the appeal has been finally disposed of or dismissed.
(4) When any such appeal has been determined by the Court of Appeal,
no further appeal shall lie as of right at the suit of any person from any final order
thereafter made in those proceedings by the Land Court so far as that order
conforms to the determination of the Court of Appeal.
77 Successive appeals in respect of same matter
Successive appeals to the Court of Appeal may be brought in respect of the
same order at the suit of different persons, but no matter determined on appeal
shall be again brought in question in any other appeal.
78 Powers of Court of Appeal on appeal
On any appeal, the Court of Appeal may do any one or more of the following
things –
(a) Affirm the order appealed from;
(b) Annul that order, with or without the substitution of any other order
therefor;
(c) Vary that order;
(d) Direct the Land Court to make such other or additional order as
the Court of Appeal thinks fit;
(e) Direct a new trial or rehearing by the Land Court;
(f) Make any order which the Land Court might have made in the
proceedings;
(g) Dismiss any appeal.
79 Dismissal of appeal for non-prosecution
If the appellant in any case does not prosecute his appeal with due diligence,
the respondent or any other person bound by or interested in the order appealed
from may apply either to the Land Court or to the Court of Appeal for an order
dismissing the appeal for non-prosecution; and, if such an order is made by either
court, the costs of the appeal and the security entered into (if any) by the appellant
shall be dealt with in such manner as that court may direct.
80 Variation deemed part of original order
(1) When an order of the Land Court is varied by the Court of Appeal, it
shall, as so varied, be deemed to remain and be an order of the Land Court and
the variation shall take and be deemed to have taken effect from the same date as
if the order had been originally made by the Land Court in that form.
(2) When an order of the Land Court is varied by the Court of Appeal, the
order as so varied shall be drawn up as an order of the Land Court and shall be
sealed with the seal of that Court and signed by the presiding Judge or by the
Chief Justice, and shall bear the same date as if no such appeal and variation had
1246 Niue Laws 2006 Vol 3
taken place; and the order as so drawn up shall supersede and take the place of the order as originally made, whether or not that order has been already drawn up, sealed, and signed.
81 Orders of Court of Appeal
(1) If on appeal the Court of Appeal makes (otherwise than by way of
variations as aforesaid) any order which the Land Court might have made in the
proceedings, a minute of the order shall be entered in the records of the Court of
Appeal and the order shall take effect as an order of the Court of Appeal as from
the commencement of the day of the making of it.
(2) As soon as practicable after the making of the order, it shall be drawn
up in writing under the seal of the Court of Appeal and the hand of the presiding
Judge or of the Chief Justice, and shall be dated as of the date of the minute.
(3) Subject to this section, section 51 with respect to orders drawn up, sealed,
and signed in the Land Court shall extend and apply to orders so drawn up, sealed,
and signed in the Court of Appeal.
(4) Sections 52 and 53 shall extend and apply to orders of the Court of
Appeal in the same manner as to orders of the Land Court.
82 Contempt
Sections 58 to 66 shall extend and apply to the Court of Appeal in the same
manner as to the Land Court.
83 Court of Appeal may order surveys
The Court of Appeal shall have the same powers with respect to the
authorisation of surveys as are conferred upon the Court and by section 47(1)(i).
84 Definition of “road”
PART 7
ROADS
(1) In this Part “road” means any land which under this Part or the corresponding provisions of any former Act has been declared as a road.
(2) Upon the declaration of any land as a road, it shall, subject to the public right of way on it, vest in the Crown, together with all materials and things of which the road is composed, or which are capable of being used for the purpose of the road and are placed or laid upon the road.
85 Public rights over roads
(1) Subject to the provisions of any enactment, the public shall have full
rights to pass and repass over any road.
(2) All roads shall be under the control of and may be formed, maintained,
and repaired by the Crown.
86 Warrant declaring existing roads
As soon as practicable after the commencement of this Act, the Registrar
shall prepare and deposit in the Land Registry Office a plan showing all land
which in his opinion has been used as of right by the public and ought to be
constituted as a road, and Cabinet shall by warrant, declare to be roads all land
shown on that plan as roads.
Niue Amendment Act (No 2) 1968
1247
87 Warrants declaring new roads
(1) Cabinet may, by warrant, declare any Crown land or Niuean land as a
road.
(2) For the purpose of this Part, it shall not be necessary to define the
boundary of any unsurveyed Crown land or Niuean land affected by any such road.
88 Warrants as to roads to be gazetted
Every warrant of Cabinet under this Part shall be under its hand and the
seal of Niue, and shall be published in the Gazette, and shall take effect according
to its tenor upon that publication or upon any later date specified in that behalf in
the warrant.
89 Access to land
(1) The Land Court may, by order, at any time declare any land to be subject
to a right of the public or of any person or class of persons to traverse that land for
the purpose of gaining access or improved access to any other land, subject to any
conditions which may be prescribed by the Court.
(2) The rights of any person under such an order shall be subject to an
obligation not to cause any damage to the land affected by the order or any crops
or improvements on it.
(3) The Court may, at the time of making the order, or at any time thereafter,
define by reference to a plan or map the route to be followed over the land; and, in
any case where the route is defined subsequent to the making of the order, the
Court may impose additional conditions or vary any conditions already made.
(4) No order shall be made declaring a right of access over Crown land
except with the consent in writing of the Cabinet.
(5) The declaration of any right of access over any land shall not affect the
ownership of the land.
(6) Any order made under this section may at any time be amended or
cancelled, if the Court thinks fit.
90 Closing of roads
(1) (a) Cabinet may, by warrant, close in whole or in part any road.
(b) No road or part of any road shall be closed under this section, if –
(i) The area comprising the closed road or part will be left without
access to a road, either directly or by being added to adjoining
land which has direct access to some other road; or
(ii) Any land having direct access to that road or part will be left
having no direct access to any road.
(2) Where any road or part of any road has been closed under this section,
the Land Court may, on application by Cabinet, make an order vesting the whole
or any portion of the land comprised in the road or part that has been closed in the
Leveki Mangafaoa or, where there is no Leveki Mangafaoa, the owners of any adjoining
land which, when the road was constituted, was Niuean land.
(3) Any land vested under this section shall become subject to any
reservation, trust, right, title, interest or encumbrance to which the land with which
it is incorporated is then subject.
(4) By the same or a subsequent order, the Court may amend any existing
title to include in it the land comprised in the road or part of it that has been
closed as aforesaid; and the Registrar is hereby authorised to make all necessary
entries or amendments in the Land Register.
1248 Niue Laws 2006 Vol 3
91 Interpretation
In this Part –
PART 8
ADOPTION
“adopted child” means any person in respect of whom an adoption order is in force;
“adoption order” means an adoption order made by the Land Court; “adoptive parent” means any person who adopts a child under an adoption
order; and, in the case of an order made in favour of a husband and
wife on their joint application, means both the husband and wife; but
does not include a spouse who merely consents to an adoption;
“child” means a person who is under the age of 21 years;
“father”, in relation to any child born out of wedlock, means the natural
father.
92 Adoption by Niuean custom invalid
No adoption by Niuean custom, whether made before or after 1 November
1969 shall be of any force or effect, whether in respect of intestate succession or
otherwise.
93 Adoption by Niuean custom before 1 April 1916 by parent dying before
5 December 1921
Notwithstanding anything in section 92, in any case where before 1 April
1916 any child was adopted by Niuean custom and since that date and before 5
December 1921 the adopting parent has died, the adoption shall for all purposes
have the same operation and effect as that which is attributed by Niuean custom
to adoption by Niuean custom.
94 Validity of adoption registered before 1 April 1916
Any adoption lawfully made and registered in the Cook Islands Land Titles
Court in the exercise of its jurisdiction in Niue before and subsisting on 1 April
1916 and continuing to subsist at 1 November 1969, shall continue to have the
same force and effect as if lawfully made by an order of adoption under this Part.
95 Court may make adoption orders
(1) Subject to this Part, the Land Court may, upon an application made by
any person, whether domiciled in Niue or not, make an adoption order in respect
of any child, whether Niuean or European, and whether domiciled in Niue or not.
(2) An adoption order may be made on the application of spouses jointly
in respect of a child.
(3) An adoption order may be made in respect of the adoption of a child
by the mother or father or the child, either alone or jointly with his or her spouse.
96 Prohibition of payments in consideration of adoption
Except with the consent of the Court, it shall not be lawful for any person
to give or receive or agree to give or receive any payment or reward in consideration
of the making of arrangements for an adoption or proposed adoption.
Niue Amendment Act (No 2) 1968
1249
97 Restrictions on making adoption orders
(1) No adoption order shall be made under this Part unless the Land Court
is satisfied that –
(a) The child to be adopted is under the age of 21 years at the date of
the filing of the application; and
(b) The applicant or, in the case of a joint application, one of the
applicants, has attained the age of 25 years and is at least 21 years
older than the child, or is the mother or father of the child; and
(c) The applicant (if unmarried) is at least 30 years older than the child;
and
(d) Where the child is female and the sole applicant is male, the
applicant is the father of the child, or there are special circumstances
which justify the making of an order; and
(e) The child, if in the opinion of the Court is above the age of 12 years,
consents to the adoption; and
(f) The applicant is a fit and proper person to have the care and custody
of the child and of sufficient ability to maintain the child, and the
adoption will not be contrary to the welfare and interests of the
child.
(2) In order to satisfy itself as to the matters mentioned in subsection (1)(f)
the Court shall call for a report on it by Cabinet or by an officer of the Niue Public
Service nominated for the purpose by Cabinet.
(3) No adopted child shall, in the lifetime of an adoptive parent and while
the adoption order remains in force, be adopted by any other person save the
husband or wife of that parent.
98 Consents to adoptions
(1) No adoption order shall be made without the consent of the parents or
of the surviving parent (if any) of the child, whether that child is born in lawful
wedlock or not, but no such consent shall be required from any parent if the Court
is satisfied that the child has been deserted by that parent, or that that parent is for
any reason unfit to have the care and custody of the child, or if the Court for any
other reason whatsoever considers that the consent of that parent should be
dispensed with.
(2) Every consent given under subsection (1) shall be given in writing and
witnessed by one of the persons specified in section 78(1) of the principal Act, and
every such witness shall certify that the parent signing the consent fully
understands the effect of an adoption order.
(3) Where the application for an adoption order is made by either a husband
or a wife alone, no order shall be made without the consent of the spouse of the
applicant, save that no such consent shall be required if the Court is satisfied that
the spouses are living apart and that their separation is likely to be permanent.
99 Effect of adoption order
Every adoption order shall have both in Niue and in New Zealand the
same operation and effect as an adoption order made under the Adoption Act
1955 has by virtue of section 16(1) and (2) of that Act.
1250 Niue Laws 2006 Vol 3
100 Adoption order may be varied or discharged
(1) The Land Court may vary or discharge any adoption order subject to
such terms and conditions as it thinks fit, on the application of any adoptive parent
or of the adopted child.
(2) The Land Court may, subject to such terms and conditions as it thinks
fit, discharge any adoption made in any place outside Niue either before or after
1 November 1969 if –
(a) The person adopted is living and is domiciled in Niue; and
(b) Every living adoptive parent is domiciled in Niue.
(3) No application for discharge of any adoption shall be made without
the prior approval of Cabinet and no adoption order or adoption shall be
discharged unless the adoption order was made by mistake as to a material fact in
consequence of a material misrepresentation to the Court or to any person
concerned.
(4) Where the Court discharges an adoption order or adoption as aforesaid,
it may confer on the person to whom the order or adoption related such surname
with such first or Christian name as the Court thinks fit; but, if it does not do so,
the names of the person shall not be affected by the discharge of the order.
(5) The discharge of an adoption order shall have both in Niue and in New
Zealand the same effect as the discharge of an adoption order under the Adoption
Act 1955 has by virtue of section 20(b) of that Act.
101 Adoption orders under Cook Islands Amendment Act 1921
(1) Every adoption order duly made under section 9 of the Cook Islands
Amendment Act 1921 and in force at 1 November 1969 shall for all purposes have
the same force and effect as an order of adoption lawfully made under this Part,
and the person named in it as the adopted child shall be deemed to have been
lawfully adopted as from the date of his adoption by Niuean custom, or, where
that date has not been proved to the satisfaction of the Court, from such date as
may be specified in the order made under the said section 9.
(2) Section 100 shall apply to every adoption under the said section 9.
102-103 [Spent]
104 [Repealed]
PART 9
Niue Amendment Act (No 2) 1968
SCHEDULE SCHEDULE 1
[Repealed]
––––––––––––––––––––––––
1251
Class
JO 04
JO 03
Step
15
14
13
12
11
SCHEDULE 2
CLASSIFICATION AND REMUNERATION SCALE FOR JUDICIARY
Daily Hourly Annual Designation
Rate Rate Allowance
$500 $160 $5,000 Chief Justice
$450 $160 $4,700 Appeal Judge
$400 $150 $4,100 High Court Judge
$375 $150 $4,000
$350 $150 $3,900
10 $36 $1,100
09 $33 $1,000
08 $30 $900
07 $27 $800
06 $24 $700
05 $21 $600
04 $19 $500
03 $17 $400
JO 02 02 $15 $300 Commissioners
JO 01 01 $13 $200 Justice of the Peace
(1) Excepting the Chief Justice and any full time judiciary appointee, all fee payments together with the annual allowance shall be paid quarterly in arrears provided however, the full annual allowance shall only be payable if the judiciary member has earned fee payments of four times the annual allowance. If less than four times the annual allowance has been earned in fees then the judiciary member shall be paid an equivalent proportion of the annual allowance.
(2) Justices of the Peace –
Lay person Steps 1-3
Legally qualified Steps 3-6
Commissioners –
Lay person Steps 2-8
Legally qualified Steps 6-11
Judges
High Court Steps 11-13
Chief Justice/Appeal Court Judges Steps 14-15
The gradings are not related to the Niue Public Service grading system nor to the previous judiciary gradings.
1252 Niue Laws 2006 Vol 3
1253
NIUE ASSEMBLY ACT 1966
1966/33 – 1 February 1966
31 Chief Electoral Officer to give public notice of election and nomination day
32 By-elections
Nominations
33 Nomination of candidates
34 Consent to nomination
35 Deposit by candidate
36 Acceptance or rejection of nomination
37 Withdrawal of nomination
38 Advertisement of nominations
39 Insufficient number of nominations
40 Unlawful nominations
41 Procedures where election not contested
Contested Elections
42 If necessary, poll to be taken
43 Form of ballot papers
Death of Candidate
44 Death before close of nominations
45 Death after close of nominations
13A Common Electoral Roll
14 Compulsory registration by electors
15 Place of residence
16 Application for enrolment of electors
17 Procedure for registration
18 Objections to registration
19 Objection by an elector
20 Objection by Registrar
21 Determination of objections
22 Closing of rolls
23 Printing of copies
24 Supplementary rolls
25 Inspection of rolls and supply of copies
26 Closing of roll for by-election
27 Effect of closing of rolls
28 Offences in relation to enrolment
29 Effect of registration
PART 4
CONDUCT OF ELECTIONS
General Elections and By-Elections
30 Clerk of the Assembly gives notice to Chief
Electoral Officer
Polling at Elections
46 Polling places
47 Allocation of Officers
48 Polling booths, ballot boxes, ballot papers
49 Returning Officers, poll clerks, and
interpreters
50 Returning Officers, poll clerks and
interpreters to make declaration
51 Scrutineers
52 Hours of polling
53 Place of ordinary voting
The Ballot
54 Ballot box to be kept locked during poll
55 Persons not to remain in polling booth
56 Voters not to be spoken to in booth
57 Questions may be put to voter
58 Issue of ballot papers
59 Method of voting
60 Spoilt ballot papers
61 Blind or disabled voters
62 Procedure when second vote given in same
name
1254 Niue Laws 2006 Vol 3
81 Erasing and altering official mark
82 Offences
83 Property in Chief Electoral Officer
84 Infringement of secrecy
PART 4
CORRUPT PRACTICES
85 Corrupt practices
86 Bribery
87 Treating
88 Undue influence
89 Personation
PART 5
DISPUTED ELECTIONS
90 Election petitions
91 Candidate may oppose petition
92 Time for holding inquiry
93 Powers of Judge on inquiry
94 Certain irregularities
95 Result of inquiry
96 Persons committing irregularities to be
prosecuted
97 Costs of inquiry
98 Determination by Court final
PART 6
MISCELLANEOUS PROVISIONS
99 Notification of bankruptcy and death
100 Printing and forms
101 Form and transmission of documents
102 Offences
103 General penalty for offences
104 Validation of irregularities
105 Regulations
SCHEDULE
To provide for the qualifications and disqualifications of electors and candidates, the mode of electing members of the Assembly and the terms and conditions of their membership
1 Short title
This is the Niue Assembly Act 1966.
2 Interpretation
(1) In this Act –
“announce” means make generally known in Niue by word of mouth or
by any other practicable means;
“candidate” means any registered elector capable of being elected and
nominated for election;
Niue Assembly Act 1966
1255
“Chief Electoral Officer” means the Chief Electoral Officer appointed under section 3, and includes any person authorised to exercise the powers, duties and functions of the Chief Electoral Officer;
“Common Electoral Roll” means the roll comprising the several village constituencies;
“constituency” means a constituency specified in section 5;
“corrupt practice” means any of the offences defined by this Act to be a
corrupt practice;
“election” means an election of a member of the Niue Assembly;
“elector” in relation to any constituency means a person registered, or
qualified to be registered, as an elector of that constituency;
“electoral officer” means any officer appointed under sections 3 and 4;
“general election” means an election which takes place after the dissolution
or expiration of the Niue Assembly;
“member” means a member of the Assembly;
“nomination day”, in relation to any election, means the day appointed by
public notice as the latest day for the nomination of candidates;
“notice in writing” includes notice by telegram or radio or other similar
means;
“official mark”, in relation to any document, means any mark enabling the
identification of the polling booth or office in which that document
was issued;
”polling day”, in relation to any election, means the day appointed by public
notice for that election for the polling to take place if a poll is required;
“presiding officer” means an electoral officer appointed to preside and
actually presiding at any polling booth on the day of polling;
“public notice”, in relation to any act, matter, or thing required to be publicly
notified, means the making of the act, matter, or thing generally known
in Niue by any practicable means in addition to publication in the
Gazette;
“registered elector” means an elector whose name is entered on any electoral
roll;
“Registrar” and “Registrar in charge” means any person appointed as the
Registrar under section 4, and includes any person authorised to exercise
the powers, duties and functions of the Registrar;
“resident”, in relation to any constituency, means any resident of Niue who
resides in that constituency and has resided there for at least 3 months
immediately preceding the date of his application for registration
pursuant to section 14;
“resident of Niue” , in relation to any applicant for registration as an elector
under section 14, means a person who is deemed to be ordinarily
resident in Niue and has been ordinarily resident throughout the period
of 3 months immediately preceding his application for enrolment or,
as the case may be, his nomination as a candidate, and has at some
period resided continuously in Niue for not less than 12 months;
“reside” in relation to any constituency has the meaning assigned to it under
section 15;
“Returning Officer” means a Returning Officer appointed under this Act
and includes any person authorised to exercise the powers, duties and
functions of a Returning Officer;
“roll” means an electoral roll or a supplementary roll made in the manner
provided by this Act containing the names of electors;
1256 Niue Laws 2006 Vol 3
“transmit” means pass on by telegram, radio or other similar means.
(2) In this Act a reference to a numbered form is a reference to the form so
numbered in the Schedule.
3 Chief Electoral Officer
PART 1
ELECTORAL OFFICERS
(1) The Niue Public Service Commission shall appoint –
(a) A Chief Electoral Officer, who shall have and exercise the powers
and duties conferred on him by this Act; and
(b) A Deputy Chief Electoral Officer, to act in the case of the illness,
absence, death, or removal of the Chief Electoral Officer.
(2) Every Deputy Chief Electoral Officer, while so acting, shall exercise the
duties and shall have the powers and authorities of the Chief Electoral Officer
and the fact that he so acts shall be sufficient evidence of his authority to do so.
4 Electoral Officers
(1) The Niue Public Service Commission shall appoint –
(a) A Registrar for each electoral roll, who shall be in charge of the roll
in respect of which he is appointed;
(b) A Returning Officer for each constituency, who shall be in charge
of the election in the constituency for which he is appointed;
(c) Such clerks and other officers as, in the opinion of the Cabinet, are
required to implement this Act;
(d) A substitute for any officer appointed under this section to act in
the case of the illness, absence, death, or removal of that officer.
The substitute, while so acting, shall exercise the duties and have
the powers and authorities of the officer for whom he is acting, and
the fact that any substitute so acts shall be sufficient evidence of his
authority to do so.
(2) Any reference in this Act to one of the officers appointed under this
section shall be deemed to include any substitute appointed for that officer.
(3) Every person appointed as aforesaid shall exercise his duties and
functions subject to the control of the Chief Electoral Officer, and shall comply
with any directions received from him.
(4) With the approval of the Chief Electoral Officer, every Returning Officer
may appoint as many deputies and poll clerks as he deems necessary for the
effective taking of the poll at every polling booth, and every such deputy shall
have and may exercise in and about the polling booth for which he is appointed
all the powers and duties of a Returning Officer, subject to the control of the
Returning Officer by whom he is appointed.
(5) No Returning Officer shall hold any official position in connection with
any political organisation.
(6) Any person may be appointed to hold 2 or more offices under this
section and section 3.
(7) No candidate shall act as a scrutineer and no person holding any office
in or being a member of any political organisation shall be an officer appointed
under this section.
Niue Assembly Act 1966
1257
5 Constituencies
(1) There shall be 14 constituencies for the election of members of the Niue
Assembly and each constituency shall have the name and comprise each of the
villages of Alofi North, Alofi South, Avatele, Hakupu, Hikutavake, Lakepa, Liku,
Makefu, Mutalau, Namukulu, Tamakautoga, Toi, Tuapa and Vaiea.
(2) Each constituency shall consist of the electors entitled under section 13
to have their names entered on the roll for that constituency.
PART 2
QUALIFICATIONS OF MEMBERS
6 Registered electors may be members unless disqualified
(1) Subject to this Act every person registered as an elector of any
constituency, but no other person, is qualified to be a candidate and to be elected
a member for that or any other constituency.
(2) A person shall not be so elected –
(a) If he is disqualified for registration as an elector under any provision
of this Act; or
(b) If he is an undischarged bankrupt.
7 Removal of name from roll without cause
Any person duly qualified as an elector who has been registered on any
electoral roll but whose name has become removed from that roll through no
fault of his own shall not, by reason only of not being registered as an elector, be
disqualified from becoming a candidate and being elected for any constituency,
but in every such case he shall forward to the Chief Electoral Officer, at the time
when he sends his consent to be nominated, a statutory declaration to the effect
that he is not disqualified as an elector for the constituency in respect of which he
was previously registered under this Act, that he still retains that qualification
and that his name has been removed from the roll of that constituency through no
fault of his own.
8 Effect of registration on wrong roll
The nomination of any person as a candidate for election, or his election as
a member shall not be questioned on the ground that, though entitled to be
registered as an elector of any constituency, he was not in fact registered as an
elector of that constituency but was registered as an elector of some other
constituency.
9 How vacancies created
The seat of a member shall be declared to be vacant by the Chief Electoral
Officer by public notice under his hand –
(a) If he fails to take the Oath of Allegiance as prescribed by the
Constitution or to make an affirmation instead of that Oath; or
(b) If on an election petition the Court declares his election void; or
(c) If he dies; or
(d) If he resigns his seat; or
(e) If, on 3 consecutive sitting days, the member fails, without the
permission of the Speaker, to attend the meetings of the Assembly
or of any committee of the Assembly; or
(f) If he ceases to reside in Niue; or
(g) If he becomes a bankrupt within the meaning of the bankruptcy
laws in force in Niue; or
1258 Niue Laws 2006 Vol 3
(h) If he is convicted in Niue or any other part of the Commonwealth of any offence punishable by death or imprisonment for a term of one year or upwards or is convicted in Niue of a corrupt practice; or
(i) If he becomes of unsound mind and is so certified by 2 Medical Officers or by one Medical Officer and a graduate of the Fiji School of Medicine; or
(j) If he becomes a national of or adheres to any state with which Her
Majesty is at war.
10 Tenure of office
(1) Every member who has been elected under this Act shall take office on
the day on which the warrant declaring his election is signed by the Chief Electoral
Officer under sections 41 and 70.
(2) The seat of a member, unless previously vacated, shall become vacant
at the end of the day next preceding the day on which the members elected at the
next ensuing general election take office.
11 Form of resignation
A member who is not a Minister may resign his seat by writing under his
hand addressed and delivered to the Clerk of the Assembly.
PART 3
ELECTORS AND ELECTORAL ROLLS
12 Qualifications of electors
(1) Subject to this Act, a person shall be qualified to be registered as an
elector of any constituency if that person –
(a) Is either –
(i) a New Zealand citizen; or
(ii) a permanent resident of Niue as defined by the Entry Residence
and Departure Act 1985; and,
(b) Has at some period resided continuously in Niue for not less than
3 years; and
(c) Has been ordinarily resident in Niue throughout the period of 12
months immediately preceding application for enrolment as an
elector or, as the case may be, nomination as a candidate;
(d) He is of or over the age of 18 years; and
(e) He has not been convicted in Niue or in any other part of the
Commonwealth of any offence punishable by death or by
imprisonment for a term of one year or upwards, or has been
convicted in Niue of a corrupt practice, unless in each case he has
received a free pardon or has undergone the sentence or punishment
to which he was adjudged for the offence; and
(f) He is not of unsound mind; and
(g) He is a resident of that constituency.
(2) For the purposes of this section a person shall be deemed to be ordinarily
resident in Niue if, and only if –
(a) He is actually residing in Niue; or
(b) Having been actually resident in Niue with the intention of residing
there indefinitely, he is outside Niue but has, and has ever since he
left Niue an intention to return and reside there indefinitely.
Niue Assembly Act 1966
1259
(3) Any person who has been outside Niue continuously for any period of more than 3 years, otherwise than for the purpose of undergoing a course of education or of technical training or instruction during the whole or substantially the whole of that period, shall be deemed not to have been actually resident in Niue during that period with the intention of residing there indefinitely.
13 Constituency Electoral rolls
(1) There shall be a constituency electoral roll for each constituency and
the Registrar in charge of that roll shall compile and keep, as provided herein, a
constituency electoral roll for the constituency for which he is appointed.
(2) (a) Every person qualified to be registered as an elector shall, subject
to this Act, be entitled to have his name entered upon the roll of the
constituency of which he is a resident.
(b) Every person who is so qualified but is not a resident of any
constituency shall be entitled to register in such constituency as the
Chief Electoral Officer determines.
13A Common Electoral roll
There shall be a common electoral roll to be kept and compiled by the Chief
Electoral Officer which shall comprise the rolls of the several village constituencies
established under this Act.
14 Compulsory registration of electors
(1) Every person who is or becomes qualified to be registered as an elector
shall make application in the prescribed form to the Registrar in charge of the roll
for the constituency for registration as an elector –
(a) –
(b) Within one month after the date on which he first becomes qualified
to be registered as an elector;
(c) Being an elector registered on the roll for any constituency, within
one month after the date on which he becomes qualified to be
registered on the roll of another constituency.
(2) No person shall be entitled to be registered as an elector on more than
one constituency electoral roll.
15 Place of residence
A person shall be deemed to reside where he has his usual place of abode
at any material time or during any material period, notwithstanding his occasional
absence from it, and notwithstanding his occasional absence on leave from his
occupation or employment.
16 Application for enrolment by electors
Every person required to apply for registration as an elector shall deliver
or send by post to the Registrar in charge of the roll on which the applicant is
entitled to have his name entered an application and declaration in form 1.
17 Procedure for registration
(1) Every applicant shall sign his application in the presence of any elector
or electoral officer or a Postmaster, who shall add his signature in witness of it.
(2) If the Registrar in charge of the roll is satisfied after due inquiry that
any claim for registration as aforesaid is valid, he shall forthwith enter the name
of the applicant on the roll.
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(3) If the Registrar is not so satisfied, he shall, within 3 working days following the receipt of the application, notify the applicant in writing of his objection to enter the applicant’s name on the roll; and the applicant may, within
3 days of receipt of that notice, apply to the Niue Public Service Commission to determine his claim; and the Niue Public Service Commission, whose decision shall be final, shall order the name of the applicant either to be entered on the roll or not to be so entered, and the Registrar shall comply with the order accordingly. (4) Every Registrar who enters the name of any applicant on any roll shall forthwith give notice in form 2 to the Registrar of the constituency (if any) for which the applicant has stated that he was previously registered, and the Registrar receiving the notice shall forthwith remove from his roll the name of the applicant or, as the case may be, inform the Registrar giving the notice that the applicant
was not registered on that roll.
(5) It shall be the duty of every Registrar to make the roll of which he is in
charge as complete as possible, and with that object to place on it the name of
every person who has transmitted an application to the Registrar and of whose
qualifications he is satisfied.
(6) It shall further be the duty of every Registrar to assure himself of the
right of every registered elector to have his name retained on the roll, and to remove
from the roll of which he is in charge the name of every person who –
(a) Has died; or
(b) Is no longer possessed of the qualifications for an elector; or
(c) Ceases to reside within the constituency.
(7) When the Registrar removes any name from the roll under subsection
(6)(b) or (c) he shall, within 3 working days, notify the elector that his name has
been so removed and thereupon the provisions of subsection (3) shall, as far as
applicable and with the necessary modifications, apply.
(8) Every registered elector shall give notice in writing to the Registrar in
charge within one month of any change of his or her name by marriage or
otherwise; and the Registrar shall, after verification of the particulars contained
in the notice, amend the roll accordingly.
18 Objections to registration
Any name on any roll may be objected to either by the Registrar in charge
of that roll or by an elector whose name appears on that roll, on the ground that
the person whose name is objected to is not qualified to be registered or is not
qualified to be registered on the roll on which his name appears.
19 Objection by an elector
If the objection is by an elector, the following provisions shall apply –
(a) The objection shall be in writing lodged with the Registrar in charge
setting forth the grounds thereof, and may be in form 3;
(b) On receipt of the objection, the Registrar in charge shall forthwith
give notice in writing to the person objected to, setting forth the
objection and the grounds thereof;
(c) If the person objected to does not, within 5 clear days after the service
of the notice, cause his name to be removed from the roll on which
his name appears, or satisfy the Registrar that he is entitled to have
his name retained on that roll, the Registrar shall transmit the
objection with the reply (if any) received from the person objected
to and with any comments or recommendations the Registrar may
wish to make, to the Niue Public Service Commission.
Niue Assembly Act 1966
1261
20 Objection by Registrar
If the objection is by the Registrar in charge of any roll, the following
provisions shall apply –
(a) The Registrar shall give notice in writing to the person objected to
of the grounds of the objection and intimate in the notice that, unless
notice of appeal is given within a time stated (being not less than 4
clear days), the name of the person objected to will be removed
from the roll without further proceedings;
(b) The notice of objection shall be in form 4, and the form of notice of
appeal set out in that form shall be annexed to it;
(c) If the person objected to does not, within the time stated in the
notice, satisfy the Registrar that he is entitled to have his name
retained on the roll, or fails to give notice of appeal, the Registrar
shall remove the name forthwith;
(d) If notice of appeal is duly given, the Registrar, if he is satisfied that
the appellant is entitled to have his name retained on the roll, shall
withdraw his objection and notify him accordingly, but, if he is not
so satisfied, he shall transmit his objection and the appeal, together
with any comments on it he may wish to make, to the Niue Public
Service Commission.
21 Determination of objections
The Niue Public Service Commission shall determine any objection
transmitted to it, after such investigation as it deems necessary, and shall direct
the Registrar in charge to retain the name objected to on the roll on which it appears
or, as the case may be, to remove it therefrom, or to transfer it through the Chief
Electoral Officer to any other roll, or to make such amendment of any roll as may
be necessary to give effect to the determination, and every such determination of
the Niue Public Service Commission shall be final.
22 Closing of rolls
(1) (a) Before every general election all electoral rolls shall be closed on a
date to be fixed for each roll by the Chief Electoral Officer.
(b) Different dates may be so fixed for different rolls.
(2) The Chief Electoral Officer shall give public notice of the date fixed for
the closing of each roll at least 10 clear days before the date so fixed.
23 Printing of copies
(1) As soon as practicable after the closing of any roll the Registrar in charge
shall cause the roll to be printed, containing the names, residences, occupations
and sex of the persons included in it, arranged and numbered consecutively in
alphabetical order of surnames, of all persons whose names are lawfully entered
on it.
(2) Each roll shall be in form 5, and shall be issued under the hand of the
Registrar in charge.
24 Supplementary rolls
The Registrar in charge may prepare a supplementary roll containing names
added to the roll after the printing of the main roll and an indication of names
removed from the main roll, and may cause the same to be printed, and every
supplementary roll shall be deemed to be a part of the main roll to which it refers.
1262 Niue Laws 2006 Vol 3
25 Inspection of rolls and supply
(1) Not later than 21 days before each general election, a printed copy of
each main roll shall be made available for inspection by the public without payment
during office hours at the office of the Registrar in charge and at such other places
in each constituency as the Registrar in charge directs.
(2) The Registrar in charge shall supply printed copies of the roll issued
under his hand to the Chief Electoral Officer, who shall supply each Returning
Officer with copies as they are required for the purpose of conducting any election.
26 Closing of roll for by-election
(1) Before any by-election, the relevant roll shall be closed on a date to be
fixed by the Chief Electoral Officer and at least 10 clear days before the date so
fixed the Chief Electoral Officer shall give public notice of it.
(2) Unless the Chief Electoral Officer thinks fit, a complete roll shall not be
printed for use at a by-election but a supplementary roll may, if the Chief Electoral
Officer thinks fit, be so printed and the provisions of this Part, as far as they are
applicable, shall apply accordingly.
27 Effect of closing of rolls
(1) The printed rolls compiled, issued, added to, or altered as herein
provided shall for the time being be the electoral rolls.
(2) (a) It shall not be lawful for the Registrar in charge to enter on or remove
from the roll the name of any person after the date fixed under this
Act for the closing of the roll until after the general election or by-
election in connection with which the roll has been closed.
(b) The Registrar in charge, on being satisfied that the name of any
person has been omitted or removed from the roll by mistake or
clerical error, or through false information, may add or restore the
name of that person to the roll at any time not later than 7 clear
days before the day appointed for an election.
(3) Any Registrar commits an offence who offends against this section,
and is liable to a fine not exceeding 0.5 penalty units for every name improperly
entered on or removed from the roll.
28 Offences in relation to enrolment
(1) Every person commits an offence, and is liable to a fine not exceeding
0.5 penalty units or to imprisonment for a term not exceeding 3 months, who
knowingly makes a false statement in any claim, application, or declaration referred
to in this Part.
(2) Every person commits an offence, and is liable to a fine not exceeding 1
penalty unit, who –
(a) Wilfully misleads the Registrar in the compilation of any electoral
roll, or wilfully enters or causes to be entered in it any false or
fictitious name or qualification or the name of any person whom
he knows to be dead; or
(b) Signs the name of any other person, whether requested to do so or
not, or any false or fictitious name, to any form of claim, application
or objection for the purpose of this Part, either as claimant, applicant,
objector, or witness; or
(c) Signs his name as witness to any signature upon any such form of
claim or objection without either having seen that signature written
or hearing the person signing declare that the signature is his own
hand-writing and that the name so signed is his own proper name.
Niue Assembly Act 1966
1263
(3) Every person commits an offence, and is liable to a fine not exceeding
0.5 penalty units who, having obtained possession of a claim for enrolment signed
by any other person for the purpose of being delivered to the Registrar for
enrolment, fails to so deliver it so that the claimant’s name is not placed on any
roll.
29 Effect of registration
Subject to this Act, every person registered on an electoral roll shall be
entitled –
(a) To either –
(i) nominate any other person registered on an electoral roll as a
candidate for election as a representative for the constituency
in respect of which the nomination is registered; or
(ii) to nominate any other person registered on an electoral roll as
a candidate for election as a representative for the common
electoral roll;
(b) To vote in the manner prescribed in article 16 of the Constitution.
PART 4
CONDUCT OF ELECTIONS
General Elections and By-Elections
30 Clerk of the Assembly gives notice to Chief Electoral Officer
For every general election and every by-election the Clerk of the Assembly
shall give notice in writing to the Chief Electoral Officer not less than 30 clear
days before the polling day fixed for that election.
31 Chief Electoral Officer to give public notice of election and nomination day
(1) The Chief Electoral Officer shall, not less than 28 clear days before polling day give public notice of that day, and shall in the notice appoint a place in Alofi and a day, being not less than 15 clear days (exclusive of polling day) before polling day, for receiving nominations of candidates.
(2) After giving any public notice, the Chief Electoral Officer shall satisfy himself that the requirements of the notice are in fact known in all constituencies concerned.
32 By-elections
(1) If the seat of a member becomes vacant 6 months or more before the
expiration of 3 years from the date of the last preceding general election, the Chief
Electoral Officer upon receipt of notice in writing from the Clerk of the Assembly
under section 30, shall forthwith, by public notice, appoint a day for a by-election
to fill the vacancy.
(2) If the seat of a member becomes vacant less than 6 months before the
expiration of 3 years from the date of the last preceding general election the seat
shall remain vacant until the next general election.
(3) Except as provided by this Act the proceedings in a by-election shall be
the same as in the case of a general election.
1264 Niue Laws 2006 Vol 3
33 Nomination of candidates
Nominations
(1) A person registered on an electoral roll and otherwise qualified to be a candidate at an election of members of the Assembly may with his consent be nominated in the manner prescribed in form 6, by not less than 2 other persons registered on an electoral roll and otherwise qualified to be electors at an election of members of the Assembly –
(a) Either as a candidate for election as a representative for the constituency in respect of which the nominators are registered; or
(b) As a candidate for election as a representative for the common electoral roll.
(2) (a) Every nomination paper and every consent shall be lodged with or
given to the Chief Electoral Officer not later than noon on
nomination day.
(b) The Chief Electoral Officer shall give a receipt in writing for every
nomination accepted by him.
(3) Every candidate shall be nominated by a separate nomination paper in
such manner as, in the opinion of the Chief Electoral Officer, is sufficient to identify
the candidate.
(4) No elector may nominate more than one candidate.
(5) A person registered on an electoral roll may inspect any nomination
paper or consent at the office of the Chief Electoral Officer without payment at
any time when the office is open for the transaction of business.
34 Consent to nomination
(1) No person shall consent to more than one nomination as a candidate at
any one election.
(2) Consent to the nomination of any person as a candidate shall be given
by him in form 6 and delivered to the Chief Electoral Officer but need not be
signified on the nomination paper or given at the time the nomination paper is
lodged.
(3) Where the Chief Electoral Officer has reasonable grounds to suspect
that consent has been given by any candidate who is not a resident of Niue, he
shall reject that consent and advise the candidate accordingly.
(4) If any dispute arises as to whether a candidate has or has not been in
residence in Niue that question shall be decided, after due inquiry into the facts of
the case, by the Chief Electoral Officer whose decision shall be final.
35 Deposit by candidate
(1) Every candidate or some person on his behalf, shall deposit with the
Chief Electoral Officer such sum as Cabinet may prescribe by regulation not later
than noon on nomination day.
(2) The deposit shall be paid in the form of money, a money order, a money
order telegram, or a bank draft.
(3) If the total number of votes received by any unsuccessful candidate is
less than one-fourth of the total number of votes received by the successful
candidate the deposit of the unsuccessful candidate shall be forfeited and paid
into the Niue Government Account, but in every other case the deposit shall be
returned to the person who paid it.
Niue Assembly Act 1966
1265
36 Acceptance or rejection of nomination
(1) The Chief Electoral Officer shall reject the nomination of any candidate –
(a) If the nomination paper and the consent of the candidate are not
lodged with him by noon on nomination day; or
(b) If the nomination paper does not state that the candidate is
registered on a specified electoral roll; or
(c) If the nomination paper is not signed by at least 2 other persons
registered on the electoral roll in respect of which the nomination
is made; or
(d) If the required deposit is not paid as required by section 35.
(2) In every other case the Chief Electoral Officer shall accept the
nomination.
(3) Nothing in subsection (2) shall limit the jurisdiction of the Court hearing
an election petition.
37 Withdrawal of nomination
(1) (a) Every candidate at any election may sign and deliver to the Chief
Electoral Officer, not later than 7 clear days before polling day, a
paper in form 7 stating that the candidate withdraws his
nomination.
(b) The Chief Electoral Officer shall give public notice of it.
(2) No withdrawal of nomination which does not comply with subsection
(1) shall have any effect.
(3) If any candidate withdraws his nomination under subsection (1), he
shall not be capable of being elected at any poll which it may still be necessary to
hold.
(4) Where a candidate has duly withdrawn his nomination under subsection (1), his deposit shall be returned to the person who paid it.
38 Advertisement of nominations
At the hour of noon on the day appointed for the nominations of candidates,
or as soon as thereafter practicable, the Chief Electoral Officer shall cause the names
of all candidates so nominated to be posted in a conspicuous place outside the
place named in the said public notice, and shall in each constituency give public
notice of the nominations in respect of every electoral roll.
39 Insufficient number of nominations
Where at any election any vacancy remains unfilled by nominations as
aforesaid, the Chief Electoral Officer shall report accordingly to the Clerk of the
Niue Assembly who shall, not later than 3 months after nomination day, declare
the seat for which no candidate was nominated to be vacant, and thereupon section
32 shall apply.
40 Unlawful nominations
(1) Every elector who nominates more than one candidate at any election
commits an offence and is liable to a fine not exceeding 0.5 penalty units.
(2) Every person who consents to more than one nomination as a candidate
at any election or wilfully makes a false statement in his consent in respect of his
residential qualification commits an offence, and is liable to a fine not exceeding 1
penalty unit or to imprisonment for a term not exceeding 3 months.
1266 Niue Laws 2006 Vol 3
41 Procedure where election not contested
If only one candidate is nominated, or if any candidate who has been
nominated duly withdraws his nomination and there remains only one candidate,
the Chief Electoral Officer shall, by public notice on or before polling day, declare
that candidate to be duly elected and thereupon the Clerk of the Assembly shall,
by warrant under his hand, declare such candidate to be elected and shall publicly
notify the date of the warrant.
Contested Elections
42 If necessary, poll to be taken
If more than one candidate is nominated, and a sufficient number do not
withdraw their nominations so as to leave only one candidate, a poll for deciding
between the candidates shall be taken by secret ballot and the Chief Electoral
Officer shall forthwith give a second public notice of polling day, and public notice
of the names of the candidates.
43 Form of ballot papers
(1) Forthwith after nomination day the Chief Electoral Officer shall cause
ballot papers to be printed in form 8 in sufficient number for the election.
(2) The ballot papers shall contain a list of all the persons nominated as
candidates who have not withdrawn their nomination (each name being inserted
once only, whether nominated in one or more nomination papers), and of no other
persons, arranged alphabetically in order of their surnames in large characters;
and where 2 or more candidates have the same surname, or for any other reason
the Chief Electoral Officer considers that confusion may arise, the candidates shall
be distinguished on the ballot papers by the addition in smaller characters of their
Christian names and such other matter as may be necessary to distinguish them.
(3) The ballot papers to be used at any election shall be printed on paper
of uniform colour.
(4) Every ballot paper shall have a counterfoil in form 9.
(5) If the Returning Officer so decides, there may also be printed on the
top right-hand corner of every ballot paper and in the space provided in the
counterfoil attached to it, a number one in the case of the first ballot paper printed,
and on all succeeding ballot papers printed the numbers shall be consecutive, so
that no 2 ballot papers shall bear the same number.
(6) If a candidate withdraws his nomination after the ballot papers have
been printed the Chief Electoral Officer shall, before the poll, erase his name from
every ballot paper.
Death of Candidate
44 Death before close of nominations
(1) Where a candidate who has been nominated and has not withdrawn
his nomination dies before the close of nominations his nomination shall be treated
in all respects as if it had not been made, and his deposit shall be returned to his
personal representatives or, as the case may be, to the person who paid it.
(2) Where in any such case the candidate dies on nomination day or on the
day before nomination day the time for the close of nominations for that
constituency or for the Common Electoral Roll, as the case may be, shall be deemed
to be postponed by 2 days.
Niue Assembly Act 1966
1267
45 Death after close of nominations
(1) If any candidate dies after the close of nominations and before the close
of the poll or if the successful candidate dies after the close of the poll and before
the declaration of the result of the poll, this section shall apply.
(2) The election shall be deemed to have failed and the seat shall be deemed
to be vacated.
(3) Where the candidate dies before polling day the Chief Electoral Officer
shall, upon being satisfied of the fact of the death, countermand the notice of the
poll in respect of that candidate.
(4) Where the candidate dies on polling day before the close of the poll the
Chief Electoral Officer shall, on being satisfied of the fact of the death, immediately
close the poll and declare it to be null and of no effect.
(5) Where the candidate dies after the close of the poll and before the
declaration of the result of the poll, and it is found on the completion of the count
of votes or on a recount that the candidate, if still living, would have been elected,
the Chief Electoral Officer shall, on being satisfied of the fact of the death, endorse
on the record the result of every election, the fact of the death and that the candidate,
if still living, would have been elected.
(6) The provisions of this Act as to an equality of votes between candidates
shall apply notwithstanding the death of one of those candidates after the close of
the poll.
(7) Where the poll is interrupted in consequence of the death of a candidate
all ballot papers placed in the several ballot boxes shall be taken out by the presiding
officers and, being made up into secured packages, shall be sent unopened to the
Chief Electoral Officer, who shall forthwith destroy them in the presence of an
officer appointed for the purpose by Cabinet.
(8) A fresh public notice shall be issued by the Chief Electoral Officer
forthwith for a new election and, except as otherwise provided, all proceedings in
connection with the new election shall be had and taken anew.
(9) The main roll and supplementary rolls which were to be used at the
election which has failed shall be used at the new election without any amendment
or addition.
(10) (a) It shall not be necessary to nominate afresh any candidate who at
the time of the countermand or close of the poll was a duly
nominated candidate.
(b) Any such candidate may withdraw his nomination not later than 7
clear days before the new polling day.
(11)All appointments of polling places made in respect of the election which
has failed shall continue in respect of the new election.
46 Polling places
Polling at Elections
The Chief Electoral Officer shall by public notice, given at least 7 days before polling day, appoint a sufficient number of polling places in each constituency where an election is being held for the taking of the poll.
47 Allocation of Officers
(1) The Chief Electoral Officer shall prescribe the constituency in which
Returning Officers, poll clerks, and interpreters shall exercise their functions.
(2) A Returning Officer shall have the powers and may perform any of the
duties of the Chief Electoral Officer in the constituency to which he is appointed
and shall be subject to the authority and control of the Chief Electoral Officer.
1268 Niue Laws 2006 Vol 3
(3) The Chief Electoral Officer shall exercise supervision over the functions of Returning Officers, poll clerks and interpreters and may give any such officers directions as to the performance of their duties.
48 Polling booths, ballot boxes, ballot papers
The Chief Electoral Officer shall provide the following things for taking
the poll –
(a) One or more rooms for polling booths at each polling place, and in each booth one or more inner compartments, separate from but opening into the booth and having no other opening;
(b) In each inner compartment pencils for the use of the voters or other suitable facilities for the marking of ballot papers;
(c) In each booth one or more ballot boxes having a lock and key and a slit in the upper side by which the ballot papers may be put into the box;
(d) In each booth one or more copies of the main and supplementary rolls and a sufficient number of ballot papers.
49 Returning Officers, poll clerks, and interpreters
(1) The Chief Electoral Officer shall appoint for each polling booth a
Returning Officer to conduct the poll at that booth and one or more poll clerks to
assist the Returning Officer, and may appoint such additional poll clerks and such
interpreters as he considers necessary.
(2) Any Returning Officer may at any time on polling day appoint in
writing a substitute to act for him in respect of that election in case of his absence
from duty.
(3) If the Returning Officer fails to open the polling at any booth, or if he is
absent from duty and has not appointed a substitute, the poll clerk at the booth
may act for him and in that event shall be deemed to be his substitute.
(4) Every substitute while acting for any Returning Officer shall have all
the powers, duties, and functions of that Returning Officer.
50 Returning Officers, poll clerks and interpreters to make declaration
Every Returning Officer and poll clerk and interpreter shall before the poll,
and every substitute for a Returning Officer shall before acting, make a declaration
in form 10 before the Chief Electoral Officer, or another Returning Officer.
51 Scrutineers
(1) Each candidate may, by writing under his hand, appoint one scrutineer
for each polling booth at any election.
(2) Every scrutineer shall, before being allowed to act, make a declaration
in form 10 before the Chief Electoral Officer or a Returning Officer.
(3) Any scrutineer who during the hours of polling leaves the polling booth
to which he is appointed, without having first obtained the permission of the
Returning Officer at that polling booth, shall not be entitled to re-enter the booth
or to resume his scrutiny.
(4) Nothing in this Act shall render it unlawful for a scrutineer to
communicate to any person information as to the names of persons who have
voted.
Niue Assembly Act 1966
1269
52 Hours of polling
(1) The poll at every election shall commence at nine o’clock in the morning
of polling day, and, except as otherwise provided in this Act, shall finally close at
6pm of the same day.
(2) Every elector who at the close of the poll is present in a booth for the
purpose of voting shall be entitled to receive a ballot paper and to mark and deposit
it in the same manner as if he had voted before the close of the poll.
53 Place of ordinary voting
Every person registered on an electoral roll unless he is a special voter,
shall be entitled to vote at any place in that constituency appointed for the taking
of the poll and at no other place.
The Ballot
54 Ballot box to be kept locked during poll
(1) The Presiding Officer shall, before the opening of the poll, and in the
sight of any of the scrutineers present, see that the ballot box is empty, and shall
close and lock it, and retain the key in his possession; and the ballot box shall not
again be opened until after the close of the poll.
(2) If the lock of a ballot box is damaged or defective so that the box cannot
be locked, the Presiding Officer shall securely seal the box instead of locking it.
55 Persons not to remain in polling booth
(1) Not more than so many voters as the Presiding Officer determines shall
be allowed in a polling booth at one and the same time, and not more than one
voter shall be allowed in any inner compartment at one and the same time.
(2) No person shall be allowed to remain in any polling booth after having
recorded his vote, except the Presiding Officer and his clerks, any of the scrutineers,
an interpreter, and as many constables as the Presiding Officer thinks necessary to
keep the peace.
56 Voters not to be spoken to in booth
(1) No scrutineers or other official or unofficial person shall speak to any
voter in a polling booth either before or after the voter has given his vote, except
only the Presiding Officer or poll clerk (with an interpreter if necessary), who
may ask the questions he is authorised to put, and give such general directions as
may assist any voter to give his vote, and in particular may on request inform a
voter orally of the names of all the candidates in alphabetical order.
(2) Every person who offends against this section commits an offence, and
is liable to a fine not exceeding 0.5 penalty units and may be at once removed
from the booth by order of the Presiding Officer.
57 Questions may be put to voter
(1) The Presiding Officer may, and if so required by any scrutineers shall,
before allowing any person to vote, put to him the following questions –
(a) Are you the person whose name appears as A B in the electoral roll
now in force for the (Name) constituency?
(b) Are you 18 years of age or over?
(c) Are you still possessed of the qualification in respect of which you
are registered?
(d) Have you already voted at this election?
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(2) Any person to whom these questions are put who does not answer the same, or does not answer the first 3 in the affirmative and the fourth in the negative, shall not be permitted to vote.
(3) Every person who wilfully and knowingly makes a false answer to any of the questions that the Presiding Officer may put to him under this section shall be liable to a fine not exceeding 0.5 penalty units.
58 Issue of ballot papers
(1) Every Presiding Officer shall, under this section, issue ballot papers to
all electors who apply to vote at the booth in respect of which he is appointed.
(2) The elector shall state his name to the Presiding Officer and shall give
such particulars as may be necessary to identify the entry in the printed rolls
relating to the elector.
(3) If the name of the elector appears in the rolls a line shall be drawn
through his name and number.
(4) If the name of the elector appears in the rolls, the Presiding Officer
shall then issue to the elector a ballot paper after he has prepared it in the following
manner –
(a) Unless a consecutive number has been printed on the ballot paper and on the counterfoil, he shall enter on both the counterfoil and the ballot paper in the spaces provided a number (called a consecutive number), beginning with the number one in the case of the first ballot paper issued by him, and on all succeeding ballot papers issued by him the numbers shall be consecutive, so that no
2 ballot papers issued in the same booth shall bear the same number; (b) He shall then fold over the corner of the ballot paper on which the consecutive number appears and shall firmly fix a piece of gummed paper over that corner so as effectively to conceal the consecutive
number;
(c) On the counterfoil of the ballot paper he shall write his initials, and
the number appearing in the roll against the name of the elector;
(d) He shall place his official booth stamp on the perforation between
the ballot paper and the counterfoil so that the booth in which the
ballot paper was issued may be identified.
(5) (a) Every Presiding Officer who fails faithfully to perform the duty
imposed on him by this section, by reason whereof any of the
requirements of this section are not effectively fulfilled, shall be
liable to a fine not exceeding 0.5 penalty units;
(b) In so far as the failure relates to the duty of fixing a piece of gummed
paper over the consecutive number so as to conceal it effectively, it
shall be a sufficient defence if he satisfies the Court that he took all
reasonable precautions to secure the same.
59 Method of voting
(1) The voter, having received a ballot paper, shall immediately retire into
one of the inner compartments provided for the purpose, and shall there alone
and secretly exercise his vote by marking his ballot paper by striking out the name
of every candidate except the one for whom he wishes to vote.
(2) Every voter shall, before leaving the inner compartment, fold his ballot
paper so that the contents cannot be seen, and shall then deposit it so folded in the
ballot box.
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60 Spoilt ballot papers
(1) Any voter who, not having deposited his ballot paper in the ballot box,
satisfies the Presiding Officer that he has spoilt it by inadvertence may be supplied
with a fresh ballot paper, but only after the spoilt one has been returned to the
Presiding Officer.
(2) The Presiding Officer shall –
(a) Cancel every such spoilt ballot paper by writing across the face of
it the words “Spoilt by voter and a fresh ballot paper issued” and
writing his initials on it;
(b) If any ballot paper is inadvertently spoilt by the Presiding officer
or any other official, cancel it by writing across the face of it the
words “Spoilt by official” and also the words “and a fresh ballot
paper issued” if that is the case, and writing his initials on it;
(c) Retain all spoilt ballot papers in his possession until the close of the
poll.
(3) The Presiding Officer shall make up into separate packets and shall
deliver to the Chief Electoral Officer as soon as practicable after the close of the
poll all spoilt ballot papers at the polling booth at which he presided.
(4) The provisions of section 73(1) providing for the disposal of ballot
papers shall apply with respect to the disposal of spoilt ballot papers.
61 Blind or disabled voters
(1) Any elector who is wholly or partially blind, or is unable to read or
write (whether because of physical handicap or otherwise), may vote under this
section.
(2) At the request of any such voter who has received a ballot paper the
Presiding Officer shall accompany him into one of the inner compartments
provided for the marking of ballot papers, and the ballot paper may there be
marked by the voter with the assistance of the Presiding Officer or may be marked
by the Presiding Officer under the instructions of the voter.
(3) The person assisting the voter shall sign his name on the back of the
ballot paper and shall add the words “Witness for blind or partially blind person”
or “Witness for person unable to read or write”, as the case may be, and shall fold
the ballot paper so that its face cannot be seen before depositing it in the ballot
box.
(4) A poll clerk or some other person nominated by the voter shall also accompany him into the inner compartment and may, if so desired by the voter, inspect the ballot paper before it is deposited in the ballot box.
(5) Any elector voting as a special voter may vote in the manner prescribed by this section, with any necessary modifications, or in any manner prescribed by regulations made under this Act.
(6) If any elector is precluded by reason of illness or infirmity from attending at any polling booth, the Presiding Officer shall make such arrangements as are in his opinion reasonably practicable to enable the voter, if he so desires, to vote.
(7) Every person who is present under this section or with any regulations when an elector votes and who communicates at any time to any person any information obtained as to the candidate for whom the voter is about to vote or has voted, or as to the number on the ballot paper given to the voter commits an offence and shall be liable on conviction to imprisonment for a term not exceeding
3 months.
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62 Procedure when second vote given in same name
(1) If any person representing himself to be a voter at any election gives as
his name the name of any person to whom a ballot paper has already been given
at the same election, the voter shall, upon giving satisfactory answers to any
questions put to him by the Presiding Officer, be entitled to receive a ballot paper
in the same manner as any other voter, but that ballot paper (hereinafter referred
to as a tendered ballot paper), instead of being put into the ballot box, shall be
given to the presiding officer who shall place it in an envelope, seal the envelope
and then endorse the envelope with the name of the voter and his number in the
electoral roll.
(2) (a) The name of the voter and his number in the electoral roll shall be
entered by the Presiding Officer on a list to be called the tendered
votes list, and that list shall be admissible as evidence in any legal
proceedings arising out of the election.
(b) The tendered votes list shall be in form 11.
(3) The envelope containing the tendered ballot paper shall be placed by
the Presiding Officer in the ballot box but shall not be counted.
63 Voting by special voters
Special Voting
(1) Any registered elector may vote as a special voter if, on polling day, he will not be in the constituency of which he is a resident.
(2) Any such elector who desires to vote as a special voter shall, not later than 7 days before polling day, apply to the Chief Electoral Officer for a certificate enabling the applicant to vote in the constituency in which he will be present on polling day, and the Chief Electoral officer if satisfied that the application is made in good faith shall issue the certificate in form 12.
(3) On polling day, on delivery by the special voter of the certificate issued to him as aforesaid, the Presiding Officer at the place named in the certificate shall supply the special voter with a ballot paper containing the names of the candidates nominated for election.
(4) Subject to this section, all the provision of this Part shall, as far as
applicable and with the necessary modifications, apply with respect to voting by
special voters and to their votes.
(5) Notwithstanding anything to the contrary in this Part, the consecutive
number of special ballot papers in any polling booth shall be in a different series
from that used in that booth for ordinary voting.
64 Voting in advance of poll
(1) Any registered elector who is entitled to vote as a special voter may
instead of applying for a certificate under section 63(2) vote in advance of polling
day.
(2) Application for leave to vote in advance shall be made to the Chief Electoral Officer at any time during office hours not earlier than 3 working days after nomination day and not later than the day immediately preceding the day fixed for taking the poll.
(3) Every applicant shall sign and deliver to the Chief Electoral Officer a
declaration in form 13 and the Chief Electoral Officer, if satisfied that the application
is made in good faith, shall issue to the applicant –
(a) A ballot paper; and
(b) An envelope marked “Vote in Advance of Poll” and addressed to
the Returning Officer in charge of the constituency.
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(4) (a) Before giving the ballot paper to the applicant, the Chief Electoral
Officer shall proceed as provided in section 58;
(b) He shall also enter the date of voting in advance on the counterfoil
and the top right-hand corner of the back of the ballot paper, and
also against the name of the applicant on the master roll.
(5) The applicant shall then alone and secretly on the ballot paper indicate
the candidate for whom he desires to vote, place the ballot paper duly folded in
the envelope, and deliver the envelope, after sealing it, to the Chief Electoral Officer.
(6) The Chief Electoral Officer shall hold for production on polling day
the sealed envelope, together with the declaration form on which the consecutive
number shall be entered, and shall be personally responsible for their safe custody.
(7) (a) On polling day the Chief Electoral Officer shall deliver the sealed
envelopes to the Presiding Officers in charge of each of the polling
booths where votes have been made in advance of the poll.
(b) The Presiding Officer shall give a receipt to the Chief Electoral officer
for the envelopes and shall record the number of envelopes received
by him on the form provided for this purpose.
(8) The Presiding Officer shall during the hours of polling open all the
envelopes delivered to him, extract from it any ballot papers and deposit the ballot
papers, without unfolding them, in the ballot box.
(9) Any person who, with intent to offer to exercise more votes than are
lawfully permitted at the same election, after having applied for a certificate
enabling him to vote as a special voter under section 63, applies for leave to vote
in advance of poling day, or, after having voted in advance of polling day, applies
for a certificate as a special voter, commits an offence and is liable to imprisonment
for a term not exceeding 3 months.
Preliminary Count of Votes
65 Procedure after close of poll
(1) At each polling booth the Presiding Officer shall, as soon as practicable
after the close of the poll, in the presence of such of the scrutineers as
choose to be present, and the poll clerks, but of no other person, perform the
following duties –
(a) He shall make up into separate parcels –
(i) the certified copies of the main roll and supplementary rolls
on which the fact of any person having received a ballot paper
has been noted; and
(ii) all the counterfoils of ballot papers that have been issued to
voters; and
(iii) all the spoilt ballot papers; and
(iv) all the unused ballot papers.
(b) He shall then open the ballot boxes and, taking therefrom all the
ballot papers in it, proceed to ascertain the number of votes received
by each candidate;
(c) He shall set aside as informal all ballot papers which do not clearly
indicate the candidate for whom the voter desired to vote;
(d) He shall announce the result of the voting at the polling booth at
which he presides and arrange for the result of the voting to be
transmitted as soon as possible to the Chief Electoral Officer;
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(e) He shall make up into separate parcels –
(i) the used ballot papers, together with (but in separate
enclosures) the ballot papers set aside as informal, and the ballot
papers set aside under section 62; and
(ii) a certificate signed by himself and by such of the scrutineers as
are present and consent to sign it of the number of votes
received by each candidate; the number of ballot papers set
aside as informal, the number of ballot papers set aside under
section 62; the number of spoilt ballot papers, the number of
ballot papers delivered to special voters, the number of unused
ballot papers, and the number of ballot papers originally
delivered to him.
(2) Each parcel made up under this section shall be endorsed by the
Presiding Officer with a description of its contents, the name of the constituency,
the name of the polling place, the number of the booth and the date of the polling;
and the endorsement shall be signed by the Presiding Officer and by such of the
scrutineers as are present and desire to sign it; and the parcel shall be enclosed in
paper or similar material and shall be properly secured.
(3) The Presiding Officer shall forthwith forward all the parcels mentioned
in this section to the Chief Electoral Officer.
66 Scrutiny of the rolls
Scrutiny of the Rolls
(1) The Chief Electoral Officer shall make arrangements for a scrutiny of the rolls as soon as practicable after the close of the poll, and shall give notice in writing to each of the candidates or their scrutineers of the time and place at which he will commence the scrutiny.
(2) No person other than the Chief Electoral Officer and his assistants, and one person appointed as scrutineer by each candidate for the purpose, shall be present at the scrutiny.
(3) No candidate shall act as scrutineer under this section.
67 Marked copies of rolls to be compared
(1) The Chief Electoral Officer shall, in the presence and hearing of his
assistants (if any) and such scrutineers as are entitled to be present under this Act,
but of no other person, compare one with another all the certified copies of the
main roll and the supplementary rolls on which the fact of any person having
received a ballot paper has been noted and all records of special votes exercised,
and shall on an unmarked copy of the main roll and every supplementary roll
(called the master roll) draw a line through the number and name of any elector
who is shown on any of the certified copies of the rolls or in any record of special
votes issued as having received a ballot paper.
(2) (a) If on that comparison, or from the checking of declarations in respect
of special votes, or from the report of the Presiding Officer on the
ballot papers set aside under section 62 and after such inquiry as
the Chief Electoral Officer deems necessary, it appears that the same
voter has received more ballot paper than lawfully ballot paper,
the Chief Electoral Officer shall, in the presence of his assistants (if
any) and such scrutineers as choose to be present, but of no other
person, open the parcel or parcels of ballot papers used at the polling
booth or polling booths at which that voter appears to have received
a ballot paper, and shall select from it the ballot papers which appear
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from their consecutive numbers and counterfoils to have been issued to that voter, and shall disallow every vote appearing to have been given by means of the ballot papers so selected.
(b) If the Chief Electoral Officer is satisfied that the ballot papers were lawfully received by the voter entitled to it the Chief Electoral Officer shall allow those votes to which the voter is entitled.
(3) For the purposes of subsection (2), every ballot paper issued to a special voter shall be deemed to have been issued at a polling booth.
(4) Except in the case of the ballot papers so selected therefrom, the Chief
Electoral Officer shall inspect only the consecutive numbers on the ballot papers
in the several parcels so opened, and shall so cover the ballot papers that no person
present shall have the opportunity of determining the candidate for whom any
particular voter has voted.
68 Parcels to be secured after scrutiny
(1) When the Chief Electoral Officer has selected from any parcel all the
ballot papers he is required to select therefrom, he shall forthwith in the presence
of his assistants (if any) and such scrutineers as are present, but of no other person
close and secure the parcel, and shall endorse on it a memorandum of the fact of
the ballot papers having been selected from that parcel, specifying the same by
the name of the person to whom the same appear to have been delivered, and
shall sign the endorsement with his name.
(2) The Chief Electoral Officer shall set aside all ballot papers selected by
him from any parcel as herein provided, and shall in the presence of his assistants
(if any) and such scrutineers as are present, but of no other person, secure those
ballot papers in a separate parcel and shall endorse the parcel with a description
of the contents of it and shall sign the endorsement with his name.
Official Count and Declaration of Poll
69 Counting the votes
(1) (a) On completion of the scrutiny hereinbefore directed the Chief
Electoral Officer, with such assistants as he deems necessary, and
in the presence of such of the scrutineers appointed under section
66 as are present, but of no other person, shall select and open one
of the parcels of used ballot papers referred to in section 65 (1)(e)
and shall mark each ballot paper in it with a number in consecutive
order, beginning with the number one, so that no 2 ballot papers in
that parcel shall bear the same number.
(b) The procedure set out in this subsection need not be delayed until
the inquiries under section 66(2) have been completed, but the ballot
papers from any particular polling booth shall not be counted until
any inquiries in respect of ballot papers from that booth have been
completed.
(2) When the ballot papers from the parcel so selected have been marked
as aforesaid the Chief Electoral Officer shall make a record of the last number
marked, and shall then, in the presence of his assistants (if any) and the scrutineers
as aforesaid, but of no other person, deal with the ballot papers as follows –
(a) (i) He shall reject as informal any ballot paper –
(I) That does not bear the official mark if there is reasonable
cause to believe that it was not issued to a voter by any
Presiding Officer; or
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(II) That purports to vote for more candidates than the number of candidates elected; or
(III) That has anything not authorised by this Act written or marked on it which the elector can be identified; or
(IV) That does not clearly indicate the candidate for whom the voter desired to vote;
(ii) no ballot paper shall be rejected as informal by reason only of some informality in the manner in which it has been dealt with by the voter if it is otherwise regular, and if in the opinion of the Chief Electoral Officer the intention of the voter in voting is clearly indicated;
(ii) no ballot paper shall be rejected as informal by reason only of
some error or omission on the part of an official, if the Chief
Electoral Officer is satisfied that the voter was qualified to vote
at the election;
(b) The Chief Electoral Officer shall then count the number of votes
received by each candidate, and the number of votes rejected as
informal, and compare the result of that count with the certificate
of the Presiding Officer in respect of the preliminary count, and
shall, where necessary, amend that certificate; and every such
certificate shall be initialled by the Chief Electoral Officer;
(c) The Chief Electoral Officer shall then make up and secure the parcel
anew, and endorse on it a memorandum specifying the number of
ballot papers contained in the parcel, the number of votes received
by each candidate, the number of informal ballot papers, and the
number of the booth at which the votes were recorded; and the
endorsement shall be signed by the Chief Electoral Officer.
(3) After the ballot papers from one parcel have been dealt with in the
manner aforesaid, those from the remaining parcels shall be successively dealt
with in like manner, the marking of the ballot papers to commence with the number
one in the case of each parcel.
(4) The ballot papers of special voters shall be dealt with in like manner,
after which they shall be made up together into a parcel which shall be properly
secured and shall be endorsed in the manner described in this section.
70 Declaration of result of poll
(1) When all the ballot papers have been dealt with as aforesaid the Chief
Electoral Officer, having ascertained the total number of votes received by each candidate, shall declare the result of the poll by giving public notice of it in form
14.
(2) Where there is an equality of votes between candidates and the addition of a vote would entitle one of those candidates to be declared elected, the Chief Electoral Officer shall forthwith apply to a Judge of the High Court for a recount under section 71 and that section shall apply accordingly, except that no deposit shall be necessary.
(3) In any case where on any recount under section 71 there is an equality of votes between candidates and the addition of a vote would entitle one of those candidates to be declared elected, the Chief Electoral Officer shall determine by lot which candidate shall be elected.
(4) The Chief Electoral Officer shall report the result of every election to
the Clerk of the Assembly who shall by warrant under his hand declare the
successful candidate to be elected and shall publicly notify the date of the warrant.
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Recount
71 Application to Judge for recount
(1) Where any candidate has reason to believe that the public declaration
by the Chief Electoral Officer of the number of votes received by each candidate is
incorrect, and that on a recount of it the first-mentioned candidate might be found
to be elected, he may within 3 days after the public declaration apply to a Judge
for a recount of the votes.
(2) Every such application shall be accompanied by a deposit of such sum
as Cabinet may prescribe by regulation.
(3) The Judge shall cause a recount of the votes to be commenced within 3
days after receiving the application, and shall give notice in writing to the Chief
Electoral Officer and to each of the candidates or their scrutineers of the time and
place at which the recount will be made.
(4) (a) The recount shall be made in the presence of the Judge or of an
officer appointed by him for the purpose, and shall as far as
practicable be made in the manner provided in the case of the
original count;
(b) No person shall be present at the recount except the Judge or the
officer appointed by him, his assistants (if any), the Chief Electoral
Officer and his assistants (if any) and the scrutineers appointed
under section 66.
(5) The Judge shall have all the powers that the Chief Electoral Officer had
on the original count, and may reverse any decision made by the Chief Electoral
Officer in the exercise of those powers.
(6) If on the recount the Judge finds that the public declaration was incorrect
he shall order the Chief Electoral Officer to give an amended declaration of the
result of the poll.
(7) The Judge may make such order as to the costs of and incidental to the
recount as he deems just, and, subject to any such order, shall direct the deposit
made under this section to be returned to the person who paid it.
72 Ballot papers and certificate to be compared on recount
(1) At any recount made as aforesaid the Chief Electoral Office shall
produce to the Judge all the used ballot papers, together with the certificate stating
the total number of ballot papers used at the election.
(2) (a) If on comparing the number of ballot papers stated in the certificate
with the ballot papers used at the election the Judge finds that any
of the ballot papers have been lost, stolen, or in any way interfered
with during the interval between the official count and the recount,
the official count made by the Chief Electoral Officer shall be deemed
to be correct, and the result of the poll declared accordingly.
(b) Where in any such case there is an equality of votes between
candidates and the addition of a vote would entitle one of those
candidates to be declared elected, the Chief Electoral Officer shall
determine by lot which candidate shall be elected.
Disposal of Ballot Papers
73 Disposal of ballot papers, rolls
(1) As soon as practicable after polling day the Chief Electoral Officer shall
enclose in separate packets in the following manner all the parcels transmitted to
him by the several Presiding Officers or made up and secured by himself –
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(a) He shall enclose in one or more separate packets all the parcels of used ballot papers, including the special voters’ ballot papers and all counterfoils corresponding to those ballot papers; in one or more other separate packets all parcels of unused and spoilt ballot papers; in another all parcels of ballot papers set aside under sections 62 and 68 and in one or more other separate packets all parcels containing ballot paper accounts, copies of rolls (except the master roll), books, or other papers, as in this Act provided, and all letters, and other papers received from any Chief Electoral Officer in respect of the votes of special voters;
(b) He shall properly secure the said several packets, and endorse them with a description of the contents of it respectively; and the name of the constituency and the date of the polling, and shall sign the endorsement; and shall forthwith forward the said packets to the Registrar of the High Court;
(c) He shall also at the same time properly secure and transmit to the Registrar of the Court a parcel containing all ballot papers printed for the election and not used by the Chief Electoral Officer or distributed for use to any Presiding Officer.
(2) The Registrar of the Court shall forthwith give or send to the Chief
Electoral Officer a receipt under his hand for the said packets and parcel.
(3) The Chief Electoral Officer shall send the master roll to the Registrar of
Electors and the Registrar shall keep it until the next general election.
(4) Any registered elector of the constituency may inspect any master roll
at the Registrar ’s office without payment of any fee at any time when the office is
open for the transaction of business.
74 Disposal of packets
(1) The packets and parcel shall be safely kept for one year unopened,
unless the Court orders them, or any of them, to be opened.
(2) At the end of one year the packets and parcel shall be destroyed
unopened in the presence of the Clerk of the Assembly and the Registrar of the
Court.
75 Papers taken from parcels as evidence in certain cases
(1) Any ballot paper and any copy of a roll, and any book purporting to be
taken from any such parcel as aforesaid, and having written on it respectively,
under the hand of the Registrar of the Court a certificate of the several particulars
by this Act required to be endorsed on the parcel shall be conclusive evidence in
any Court that it was so taken and that it, if a ballot paper, was deposited and, if a
roll or book, was kept or used at the election and booth to which the endorsement
and writing relate.
(2) Every ballot paper so certified shall be evidence of a vote given at the
poll, and of the correspondence of the number appearing on the ballot paper with
the number appearing on any roll so certified as of the same election and booth,
according to the tenor of the said ballot paper.
(3) But in the case of the ballot papers set aside or selected by a Presiding
Officer or by the Chief Electoral Officer, the correspondence shall be evidence
only of some person having voted in the name appearing on the roll.
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Maintenance of Order at Elections
76 Presiding Officer to maintain order
Every Presiding Officer shall have power to enforce order and keep the
peace at any election and may, without any other warrant than this Act, cause to
be arrested and taken before a Judge or Commissioner of the High Court any
person reasonably suspected of knowingly and wilfully making a false answer to
any of the questions the Presiding Officer is authorised to put, or who attempts to
personate any voter or to vote more than once at the same election, or who obstructs
the approaches to any polling booth, or who otherwise behaves in a disorderly
manner or causes disturbances at any election; and all constables shall aid and
assist the Presiding Officer in the performance of his duty.
77 Adjournment of poll
(1) Where the polling at any polling place cannot start or has to be
suspended whether by reason of riot or open violence, natural disaster, or any
other cause, the Presiding Officer shall adjourn the taking of the poll at that polling
place to the following day, and if necessary from day to day until the poll can be
taken, and shall forthwith give public notice of the adjournment in such manner
as he thinks fit.
(2) The poll shall not be kept open for more than 9 hours in all at any
polling place.
Custody of Ballot Papers
78 Prevention of irregularities
In order to prevent the commission at any election of irregularities in respect
of the improper possession of ballot papers the following shall apply –
(a) The Chief Electoral Officer shall give to the person printing the ballot
papers a receipt specifying the total number of ballot papers received
by him, and it shall be the duty of the printer to see that all copies
of the ballot paper other than those delivered to the Chief Electoral
Officer are immediately destroyed;
(b) Every Presiding Officer shall give to the Chief Electoral Officer a
receipt specifying the total number of ballot papers received by him,
and shall be personally responsible for the safe custody of all such
ballot papers from the time they are received by him until they are
issued or otherwise disposed of under this Act;
(c) Every Presiding officer shall be personally responsible for the safe
custody of all ballot papers used at the polling booth at which he
presides from the time each ballot paper was placed in the ballot
box by the voter until the parcel of used ballot papers has been
delivered to the Chief Electoral Officer as in this Act provided and
the Presiding officer obtained from the Chief Electoral officer a
receipt in writing for the parcel, which receipt the Chief Electoral
Officer is in all cases required to give on such delivery;
(d) In like manner the Chief Electoral Officer shall be personally
responsible for the safe custody of all ballot papers used at the
polling booth at which he presides until they have been sent to the
Registrar of the Court as hereinbefore provided, and also for the
safe custody of all parcels of used ballot papers for which he has
given a receipt to a Presiding Officer, until they have been sent by
him to the Registrar of the Court as aforesaid;
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(e) Every person who fails to take reasonable steps to secure the safe custody of all ballot papers for which he is responsible, with the result that any such ballot paper is removed from his custody, shall be liable to a fine not exceeding 1 penalty unit or to imprisonment for a term not exceeding 6 months;
(f) Every person shall be liable to a fine not exceeding 1 penalty unit
who wilfully or negligently allows any copy of a ballot paper printed
by him to come into the possession of any person other than the
Chief Electoral Officer;
(g) Every person shall be liable to a fine not exceeding 1 penalty unit
who except under any regulations made under this Act in relation
to special voters, obtains possession of or has in his possession any
ballot paper other than the one given to him by the Chief Electoral
Officer or Presiding Officer for the purpose of recording his vote,
or retains any ballot paper in his possession after leaving the polling
booth.
79 Interfering with voters
Offences at Elections
(1) Every person commits an offence and shall be liable to a fine not exceeding 0.5 penalty units who at an election –
(a) In any way interferes with any elector, either in the polling booth or while on his way to it, with the intention of influencing him or advising him as to his vote;
(b) At any time on polling day before the close of the poll in or in view or hearing of any public place holds or takes part in any demonstration or procession having direct or indirect reference to the poll by any means whatsoever;
(c) At any time on polling day before the close of the poll makes any
statement having direct or indirect reference to the poll by means
of any loudspeaker or public address apparatus or cinematograph
apparatus;
(d) At any time on polling day before the close of the poll, or at any
time on any of the 3 days immediately preceding polling day, prints
or distributes or delivers to any person anything being or purporting
to be in imitation of any ballot paper to be used at the poll and
having on it the names of the candidates or any of them, together
with any direction or indication as to the candidate for whom any
person should vote, or in any way containing any such direction or
indication, or having on it any matter likely to influence any vote;
(e) At any time on polling day before the close of the poll exhibits in or
in view of any public place, or publishes or distributes, or
broadcasts, any statement advising or intended or likely to influence
any elector as to the candidate or party for whom he should vote:
Provided that this paragraph shall not apply to any statement in a
newspaper published before six o’clock in the afternoon of the day
before polling day:
Provided also that where any statement is so exhibited before
pooling day in a fixed position not in view of a polling place it shall
not be an offence to leave it so exhibited on polling day:
Provided further that the Chief Electoral Officer may at any time
on polling day cause to be removed or obliterated any statement to
Niue Assembly Act 1966
1281
which this paragraph applies which is exhibited within half a mile of a polling place, and may recover all expenses incurred in so doing from the persons by whom or by whose direction the statement was exhibited, as a debt due by them jointly and severally to the Government;
(f) At any time on polling day before the close of the poll prints or
distributes or delivers to any person any card or paper (whether or
not it is an imitation ballot paper) having on it the names of the
candidates or any of them;
(g) Exhibits or leaves in any polling booth any card or paper having
thereon any direction or indication as to how any persons should
vote or as to the method of voting;
(h) At any time on polling day before the close of the poll, within, or at
the entrance to, or in the vicinity of, any polling place –
(i) gives or offers to give to any person any written or oral
information as to any name or number of the main roll or any
supplementary roll being used at the election;
(ii) permits or offers to permit any person to examine any copy of
the main roll or any supplementary roll being used at the
election.
(2) It shall not be an offence against this section for any person to wear or
display (whether on his person or not) any party emblem.
(3) Nothing in this section shall apply to any official statement or
announcement made or exhibited under the authority of this Act.
80 Publishing defamatory matter at election time
Every person shall be liable to a fine not exceeding 1 penalty unit or to
imprisonment for a term not exceeding 3 months who at any time after public
notice has been given of any election and before the close of the poll publishes or
exposes, or causes to be published or exposed, to public view any document or
writing or printed matter containing any untrue statement defamatory of any
candidate and calculated to influence the vote of any elector.
81 Erasing and altering official mark
Every person shall be liable to a fine not exceeding 1 penalty unit who
erases, obliterates, or alters any official mark, stamp, or writing on any ballot paper,
or places on it any writing, print, or other matter which might lead persons to
believe that it was put on it by any official or person duly authorised in that behalf.
82 Offences
(1) Every person commits an offence against this section who –
(a) Forges, or counterfeits, or fraudulently defaces, or fraudulently
destroys any ballot paper, or the official mark on any ballot paper;
(b) Without due authority supplies any ballot paper to any person;
(c) Fraudulently puts into any ballot box any paper other than the ballot
paper that he is authorised by law to put in there;
(d) Fraudulently takes out of a polling booth any ballot paper;
(e) Without due authority destroys, takes, opens, or otherwise interferes
with any ballot box, or box or packet or parcel of ballot papers,
then in use for the purposes of an election, or in course of
transmission by post or otherwise, or thereafter whenever the same
may be kept as a record of the election.
1282 Niue Laws 2006 Vol 3
(2) Every person who commits an offence against this section shall be liable on conviction –
(a) If an officer appointed under this Act to imprisonment for a term not exceeding 2 years;
(b) If any other person, to imprisonment for a term not exceeding 6 months.
(3) Every person who attempts to commit any offence against this section shall be liable on conviction to imprisonment for a term not exceeding one half of the longest term to which a person committing the offence may be sentenced.
83 Property in Chief Electoral Officer
In any prosecution for an offence in relation to any ballot boxes, ballot
papers, or making instruments at an election, the property in the boxes, papers,
and instruments may be stated as being in the Chief Electoral Officer.
84 Infringement of secrecy
(1) Every official, clerk, scrutineer, interpreter, and constable in attendance
at a polling booth shall maintain and aid in maintaining the secrecy of the voting
in the booth, and shall not communicate to any person, except for some purpose
authorised by law, any information likely to defeat the secrecy of the ballot.
(2) No person, except for some purpose authorised by law, shall –
(a) Interfere with or attempt to interfere with a voter when marking
his vote;
(b) Attempt to obtain in a polling booth information as to the candidate
for whom any voter in a booth is about to vote or has voted;
(c) Communicate at any time to any person any information obtained
in a polling booth as to the candidate for whom any voter at the
booth is about to vote or has voted, or as to the consecutive number
on the ballot paper given to any voter at the booth.
(3) Every person in attendance at the counting of the votes shall maintain
and aid in maintaining the secrecy of the voting, and shall not communicate any
information obtained at the counting as to the candidate for whom any vote is
given in any particular ballot paper.
(4) No person shall directly or indirectly induce any voter to display his
ballot paper after he has marked it, so as to make known to any person the name
of any candidate for or against whom he has voted.
(5) Every person who offends against this section shall be liable to
imprisonment for a term not exceeding 3 months.
85 Corrupt practices
PART 4
CORRUPT PRACTICES
Every person is guilty of a corrupt practice, and is liable to imprisonment for a term not exceeding one year, who, in connection with any election, is convicted of bribery, treating, undue influence, or personation as defined in this Part.
86 Bribery
Every person commits the offence of bribery who, in connection with any
election –
(a) Directly or indirectly gives or offers to give to any elector any money or valuable consideration or any office or employment in order to induce the elector to vote or refrain from voting; or
Niue Assembly Act 1966
1283
(b) Directly or indirectly makes any gift or offer as aforesaid to any person in order to induce that person to procure or endeavour to procure the return of any candidate or the vote of any elector; or
(c) Upon or in consequence of any such gift or offer, procures or endeavours to procure the return of any candidate or the vote of any elector; or
(d) Advances any money to any person with the intent that that money or any part of it shall be expended in bribery within the meaning of this section; or
(e) Being an elector, directly or indirectly receives or agrees to receive any gift, money, valuable consideration, office, or employment as aforesaid in return for voting or refraining from voting or for agreeing to it.
87 Treating
Every person commits the offence of treating who, being a candidate at
any election, by himself or any other person on his behalf, corruptly gives or
provides any meat, drink, entertainment, or other provision to or for any person
for the purpose of procuring his own election or on account of his having been
elected or for any other purpose calculated to influence the vote of that person.
88 Undue influence
Every person commits the offence of undue influence who, by himself or
any other person on his behalf, uses or threatens to use any force, violence or
restraint, or inflicts or threatens to inflict any injury, damage, harm, or loss upon
or against any person in order to induce or compel that person to vote or refrain
from voting or on account of that person having voted or refrained from voting,
or who by abduction, duress, or any fraudulent device or contrivance in any way
interferes with the free exercise of the franchise by an elector.
89 Personation
Every person commits the offence of personation who at any election applies
for a voting paper in the name of some other person, living or dead, or of a fictitious
person, or who, having voted once at any such election, applies again at the same
election for a voting paper in his own name.
90 Election petitions
PART 5
DISPUTED ELECTIONS
(1) Where any candidate and 5 electors, or where any 10 electors, are dissatisfied with the result of any election held in respect of which that candidate is nominated, or in which those electors are registered, they may, within 14 days after the declaration of the result of the election, by petition filed in the High Court as hereinafter mentioned, demand an inquiry as to the conduct of the election or of any candidate or other person at it.
(2) Every such petition shall be accompanied by a deposit of $20.
(3) The petition shall be in form 15 and shall be filed in the Court, and
shall be heard and determined before a Judge of the Court.
(4) The petition shall allege the specific grounds on which the complaint is
founded, and no grounds other than those stated shall be investigated except by
leave of the Judge and upon reasonable notice being given, which leave may be
given on such terms and conditions as the Judge deems just.
1284 Niue Laws 2006 Vol 3
(5) Evidence may be given to prove that the election of any rejected candidate would be invalid in the same manner as if the petition had complained of his election.
91 Candidate may oppose petition
Any candidate may, at any time before the commencement of the inquiry,
file in the Court a notice in writing of his intention to oppose the petition, and
thereupon the candidate shall be deemed to be the respondent to the petition.
92 Time for holding inquiry
The inquiry shall be commenced within 14 days after the filing of the
petition, but not earlier than 14 days after the day on which the poll was closed,
and not less than 7 days’ public notice shall be given of the time and place at
which the inquiry will be held.
93 Powers of Judge on inquiry
For the purposes of the inquiry, the Judge shall have and may exercise all
the powers of citing parties, compelling evidence, adjourning from time to time
and from place to place, and maintaining order that he would have in this ordinary
jurisdiction, and, in addition, may at any time during the inquiry direct a recount
or scrutiny of the votes given at the election, and shall disallow the vote of every
person who –
(a) Has voted, not being entitled to vote; or
(b) Has given more votes than he was entitled to give.
94 Certain irregularities
No election shall be declared void by reason of any irregularity in any of
the proceedings preliminary to the polling or by reason of any failure to hold a
poll at any place appointed for holding a poll, or to comply with the directions
contained or incorporated in this Act as to the taking of the poll or the counting of
the votes or by reason of any mistake in the use of the forms contained or
incorporated in this Act, if it appears to be the Judge that the election was conducted
under the principles laid down in and by this Act and that the irregularity, failure,
or mistake did not affect the result of the election.
95 Result of inquiry
(1) The Judge shall determine whether, by reason of some irregularity that
in his opinion materially affected the result of the election, the election is void; or
whether the candidate whose election is complained of, or any and what other
candidate, was duly elected.
(2) The Judge shall cause any determination under this section to be
transmitted to the Clerk of the Assembly, who shall forthwith –
(a) Publicly notify any such determination;
(b) Where any election is determined to be void, declare the seat vacant
under section 10;
(c) Where any other candidate is determined to be elected, declare that
candidate to be elected under section 70 and revoke any warrant
previously issued by him under that section which is not consistent
with the determination.
Niue Assembly Act 1966
1285
96 Persons committing irregularities to be prosecuted
Where on any such inquiry the Judge is of the opinion that any irregularity
has been wilfully committed by any person, he shall direct the officer in charge of
the Police to take proceedings for the prosecution of that person, who on conviction
shall (unless some other penalty is elsewhere prescribed) be liable –
(a) To a fine not exceeding 2 penalty units where the irregularity, in the
opinion of the Judge, materially affected the result of the election;
or
(b) To a fine not exceeding 0.5 penalty units, where the irregularity did
not, in the opinion of the Judge, materially affect the result but
defeated the fairness of the election; or
(c) To a fine not exceeding 0.5 penalty units, where the irregularity did
not, in the opinion of the Judge, either materially affect the result or
defeat the fairness of the election.
97 Costs of inquiry
(1) (a) The Judge may order that the expenses of and incidental to the
inquiry shall be borne either by any party to the inquiry, or, where
he declares the election void on the ground or partly on the ground
of any negligence or misfeasance of any electoral officer or other
person exercising any functions at the election under this Act, may
order that those expenses or any part of it shall be borne by that
officer or other person; and that order shall have the same effect
and may be enforced in like manner as it if were a judgment for a
sum of money obtained in the Court;
(b) No such order shall be made against any person other than a party
to the inquiry, unless he has been summoned to attend and give
evidence at the inquiry.
(2) Subject to any such order, the Judge shall direct that the deposit
accompanying any petition shall be returned to the person or persons who paid
the same, unless the Judge is of opinion that the petitioners have failed to establish
the grounds specified in their petition, or any other grounds investigated by leave
of the Judge, in which case the deposit or the surplus remaining after satisfying
the order shall be deemed to be forfeited to Her Majesty, and shall form part of the
public revenue of Niue.
98 Determination by Court final
Every determination or order by the Judge in respect of or in connection
with an election petition shall be final.
PART 6
MISCELLANEOUS PROVISIONS
99 Notification of bankruptcy and death
(1) The Registrar of the Court shall forthwith after adjudication as a
bankrupt of a member, or after his conviction of an offence under section 102(2) or
of any offence described in section 12(1)(e) notify the fact to the Clerk of the
Assembly.
(2) The Registrar of Births and Deaths by whom the death of any member
is registered shall, within one working day of making that registration, notify the
fact to the Clerk of the Assembly.
1286 Niue Laws 2006 Vol 3
100 Printing and forms
(1) Any requirement of printing under this Act shall be satisfied by
typewriting and any mechanical process of reproducing typewritten copies, and
the term “printed” shall, where necessary, be construed accordingly.
(2) Where any form prescribed by or referred to in this Act is not available,
a form may be improvised, and any electoral officer using or issuing any such
form improvised shall affix his initials or official mark to it.
101 Form and transmission of documents
(1) Every person making or giving any claim, application, declaration, or
notice under this Act shall sign the same with his own hand, or, if he cannot write,
his mark shall be attested by a Postmaster, an officer of the Court, or any electoral
officer.
(2) Save as otherwise provided in this Act, every such document may be delivered to any electoral officer appointed in any constituency for the purposes of this Act who shall transmit it to the Chief Electoral Officer, the Court, or the appropriate electoral officer, as the case may be, by mail or telegram as circumstances require, and the expenses of any such transmission of any such bona fide document shall be paid out of the pubic revenues of Niue.
102 Offences
(1) Every person commits an offence and is liable to a fine not exceeding
0.5 penalty units, who –
(a) Procures himself to be nominated as a candidate for election as a
member knowing himself to be incapable under any provisions of
this Act holding that office; or
(b) Signs any nomination paper purporting to nominate to that office
a person who is, to the knowledge of the person so signing,
incapable as aforesaid; or
(c) Signs any nomination paper knowing himself not to be qualified to
nominate a candidate.
(2) Every member who sits or votes in the Assembly, being disqualified
under any provisions of this Act and knowing himself to be so disqualified, or
being liable to have his seat declared vacant under any provisions of this Act and
knowing himself to be so liable, commits an offence and is liable to a fine not
exceeding 0.5 penalty units for every day on which he so sits or votes.
103 General penalty for offences
(1) Every person appointed to carry the provisions of this Act into execution
commits an offence, and is liable to a fine not exceeding 1 penalty unit or to
imprisonment for a term not exceeding one month who is guilty of any wilful or
negligent act of commission or omission contrary to this Act in respect of any
election, and for which no other penalty is provided by this Act.
(2) Any other person who commits a breach of this Act for which no other
penalty is provided by this Act is liable to a fine not exceeding 1 penalty unit.
104 Validation of irregularities
Where anything is omitted to be done or cannot be done at the time required
by or under this Act, or is done before or after that time, or is otherwise irregularly
done in matter of form, or sufficient provision is not made by or under this Act,
the Chief Electoral Officer may, by public notice, at any time before or after the
time within which the thing is required to be done, extend that time, or validate
Niue Assembly Act 1966
1287
anything so done before or after the time required or so irregularly done in matter of form or make other provision for the case as he thinks fit.
105 Regulations
(1) Cabinet may make such regulations as may be deemed necessary or
expedient for the purpose of giving full effect to this Act and for the due
administration of it.
(2) Regulations made under this section may prescribe penalties for
offences against the regulations, not exceeding imprisonment for a term of 3 months
or a fine of 1 penalty unit, or both.
(3) Any regulations made under this section shall be laid before the
Assembly within 14 days after the date of the making of it if the Assembly is then
in session, or if not, within 14 days after the commencement of the next ensuing
session.
–––––––––––––––––––– SCHEDULE
Form 1
APPLICATION FOR REGISTRATION AS AN ELECTOR
I hereby claim to have my name entered upon the Electoral Roll for the Constituency, and I declare that the answers to the following questions are true and correct in every particular:
1 (a) Your full name:
.................................................................................................................................
(Surname) (First Name) (Middle Name)
(b) Your father ’s name:
.................................................................................................................................
(Surname) (First Name) (Middle Name)
(c) Your husband’s/wife’s name:
.................................................................................................................................
(Surname) (First Name) (Middle Name)
2. Your present occupation: ...........................................................................................
3. Your present residential address: ..............................................................................
.......................................................................................................................................
4. Have you resided in Niue throughout the period of 12 months immediately before the making of this application?
.......................................................................................................................................
1288 Niue Laws 2006 Vol 3
5. Have you lived at your present address throughout that 12 month period?
.......................................................................................................................................
6. If not, list the addresses, with the length of time, at which you have lived during that 12 month period.
.......................................................................................................................................
Address Length of time
7. Put a cross (X) in the space which applies to you:
Are you Male ................... Are you Single .......... Female ............................... Married ......................
8. Write in these spaces:
Your date of birth ........................................................................................................
(Day) (Month) (Year)
Your age today ....................................................................................................... years
9. Are you a New Zealand citizen? ...............................................................................
10. If you are not a New Zealand citizen, do you have the status of a Permanent
Resident of Niue?
.....................................................................................................................................
11. On what grounds do you claim that status?
.....................................................................................................................................
12. Have you at some time resided continuously in Niue for not less than 3 years?
..................................................................................................................................... Signed and declared by the applicant this day of 20 .
Signature of applicant: ...................................................................................................
Signature of witness: ......................................................................................................
(Witness must be a registered elector, or Electoral Officer, or a Postmaster)
Niue Assembly Act 1966
Section 17(4) Form 2
NOTICE OF TRANSFER
1289
To the Registrar for the ........................................................................... Constituency.
PLEASE remove from your electoral roll the name of (Surname), (Christian name), (Address on former roll), (Occupation on former roll), (Sex), as the elector was registered in this constituency on (Date).
................................................................. Registrar for the .............................. Constituency
Section 19(a) Form 3
NOTICE OF OBJECTION BY ELECTOR
To the Registrar for the ........................................................................... Constituency. I, (Name in full), of (postal address in full), hereby give notice that I object
* to the registration on any roll of (name in full), of (postal address in fuln( �br/>* to the retention of the name of (name in full) of (postal address in full),
on the roll for the........................................Constituency.
The grounds of my objection are the following: ........................................................
........................................................................................................................................... Dated this.....................................day of...........................20...............
*Delete words that do not apply
Signature: ...................................................
Section 20(b) Form 4
NOTICE OF OBJECTION BY REGISTRARY
To Take notice that I object
* to your registration on any electoral roll
* to the retention of your name on the roll for the.....................................Constituency
on the following grounds:
Unless the annexed notice of appeal is signed by you and returned to me within
days from this date, your name will be removed from the roll without further
proceedings.
Dated this.....................................day of...........................20...............
Registrar: ....................................................
*Delete words that do not apply
Constituency: .............................................
1290 Niue Laws 2006 Vol 3
NOTICE OF APPEAL
To the Registrar for the...................................................Constituency
Take notice that I appeal from your objection to my registration
* on any electoral roll
* on the roll for the...............................................Constituency on the following
grounds:
Dated this.....................................day of...........................20...............
Signature and address: ...................................................................................................
*Delete words that do not apply
Section 23(2) Form 5
ELECTORAL ROLL FOR................................................CONSTITUENCY
Roll of Persons Entitled to Vote
For a Representative for the...............................................Constituency
Number on Roll Name in Full, Residence, Occupation, Sex
............................................................Registrar
Section 33 Form 6
NOMINATION PAPER
To the Chief Electoral Officer:
WE (name), and (name), being registered on the Electoral Roll for the
.......................Constituency hereby nominate (name, residence, occupation),
registered on the roll for the.......................................Constituency, with his consent,
as a candidate at the election of a Representative for the..............................
Constituency, the holding of which election is appointed for the..................................
day of ............................20............................
Dated this.............................day of..........................20................
To the best of our knowledge, on nomination day, namely the......................day of
20...............(name) will have been ordinarily resident (within the meaning of that
expression as it is defined in section 12 of the Niue Assembly Act 1966) in Niue
throughout the period of 3 months immediately preceding that date and will have
at some period resided continuously in Niue for not less than twelve months.
Dated this........................day of..........................20.....................
A.B. C.D.
(Full names, residences and occupations)
I, (name) hereby consent
* to the above nomination
Niue Assembly Act 1966
CONSENT
1291
* to my nomination as a candidate at the election of a .............................................. representative for the .................................Constituency for the Common electoral role by A.B. and C.D.
And I solemnly declare that throughout the period of three months immediately preceding nomination day, namely the..........................day of......................20.........I have been ordinarily resident (within the meaning of that expression as it is defined in section 12 of the Niue Assembly Act 1966) in Niue.
(Full name, residence & occupation)
*Delete words that do not apply.
Section 37 Form 7
NOTICE OF WITHDRAWAL OF NOMINATION
To the Chief Electoral Officer :
I hereby give notice that I withdraw my name as a candidate at the election of a representative for the ...............................Constituency for the Common electoral role, the holding of which election is appointed for the.........................day of..................20......................
Signature of candidate: ........................... Received at the hour of ...........on the................day of..................20.................
Signature of Chief Electoral Officer
Section 43 Form 8
Election of a Representative of the
...........................................Constituency Ballot Paper
Directions
Strike out the name of every candidate except the one for whom you wish to vote. You must not vote for more than one candidate.
After voting, fold this paper and place it in the ballot box. You must not take it out of the polling booth.
If you spoil this paper, return it to the Presiding Officer and obtain another.
Lipitoa
Makaola
Sisipi
Tusini, Mose
Tusini, Sione
1292 Niue Laws 2006 Vol 3
Form 8A
Election of Representatives for the
Common Electoral Roll
DIRECTIONS
1. Strike out the name of every candidate except those for whom you wish to
vote.
2. You must not vote more than once.
3. After voting fold this paper and place it in the ballot box.
4. You must not take it out of the polling booth.
5. If you spoil this paper, return it to the Presiding Officer and obtain another.
Section 43(4) Form 9
COUNTERFOIL FOR BALLOT PAPER
Consecutive No.................................
To be entered here and also on the top right-hand corner of the back of the ballot paper.
....................................................................
Designation of Roll:
(To be entered here only)
....................................................................
|
Stamp across the perforation so that the |
) |
Official |
|
official booth stamp on the polling place |
) |
Booth |
|
shall appear on both the counterfoil and |
) |
Stamp |
|
the ballot paper. |
Initials of Presiding Officer:
........................................................... Sections 50, 51
Form 10
DECLARATION BY RETURNING OFFICER, POLL CLERKS,
SCRUTINEERS AND OTHER OFFICERS
I, A.B, solemnly declare that I will faithfully and impartially according to the best of my skill and judgment, exercise and perform all the powers or duties reposed in or required of me by the Niue Assembly Act 1966, and I solemnly promise that I will not, except as provided by the said Act directly or indirectly disclose any fact coming to my knowledge at any election.
Signature ................................................... Declared and signed at......................this..............................day of .............. 20...........
Before me:
Signature: .................................................. Capacity of witness: .................................
Niue Assembly Act 1966
1293
NOTE: The witness, in the case of a Returning Officer, must be the Chief Electoral Officer. In the case of any other electoral officer or of any scrutineer, the witness must be the Chief Electoral Officer or a Returning Officer.
Section 62
Form 11
TENDERED VOTES LIST
Name of Voter Number in Roll
1. .......................................................... ......................................................
2. .......................................................... ......................................................
3. .......................................................... ...................................................... Each of the abovenamed persons, representing himself to be a voter, applied for a
ballot paper after another person has voted as that voter. Each applicant gave
satisfactory answers to the questions in section 62 of the Niue Assembly Act 1966,
and I therefore entered on this list his name and his number in the electoral roll.
Constituency ...........................................
Polling Booth at: .....................................
.......................................... Presiding Officer
........................................................ 20............
Section 63(2) Form 12
CERTIFICATE FOR SPECIAL VOTES
To the Returning officer for the.............................................Constituency.
Whereas (name, occupation, address) is an elector registered on the electoral roll
for the ............................................. Constituency and has duly applied for a certificate
enabling him to vote in the ............................................. Constituency pursuant to the
provisions of section 63 of the Niue Assembly Act 1966.
I hereby certify that the said (name) is entitled to vote in the
............................................. Constituency at the election appointed to be held on
the...................................day....................... of.........................20...................... Dated this.............................................day of.............................................20.........
Chief Electoral Officer
........................................................ 20............
1294 Niue Laws 2006 Vol 3
Section 64
Form 13
DECLARATION ON VOTING IN ADVANCE OF POLL
I hereby declare that to the best of my knowledge and belief the following statements are true:
1. My surname and Christian names are:
Surname: ...................................................................................................................... Full Christian name: ..................................................................................................
2. My address is: .............................................................................................................
3. My occupation is: .......................................................................................................
4. I am registered as an elector of the .................................................. Constituency.
5. I am still possessed of the qualification I respect of which I am registered.
6. I have not already voted at this election.
7. I have not applied for a certificate as a special voter pursuant to Section 63 of the Niue Assembly Act 1966.
Signature of elector: ........................................................ Date:.......................................
................................................................
Chief Electoral Officer
Section 70
Form 14
Declaration of Result of Poll
.....................................................Constituency
I hereby declare the result of the poll taken on the ....................................................
.................................day of......................................20................. For the election of a
Number of votes rejected as informal ..................................
I thereby declare the said C.D. to be elected. .................................. Dated at............................................this............................day of...................20.......
A.B.
Chief Electoral officer
Niue Assembly Act 1966
Form 14A Declaration of Result of Poll: Common Electoral Roll
1295
I hereby declare the result of the poll taken on the.......................day of.......................
20........ for the election of six (6) representatives for the common electoral roll to be
as follows:
Candidates Votes Received
1
2
3
4
5
6
7
8
Total number of valid votes .......................... Number of votes rejected as informal ..........................
I therefor declare the candidates numbered from 1 to 6 inclusive to be elected as representatives of the common electoral roll.
Dated at Alofi this...........................day of..................................20....................
Chief Electoral Officer
Section 90 Form 15
PETITION FOR INQUIRY
In the matter of an election of members of the Niue Assembly held on............................the........................day of.................20..............
To................................., Judge of the High Court in Niue. The Petition of the undersigned, namely –
(name, occupation, address), Candidate (name, occupation, address), Elector humbly shows:
1. Your petitioners state that the said election was held on the day of 20 and that A.B. was declared to be elected as a representative for the Constituency for the Common electoral roll:
2. And your petitioners say that (state the facts and grounds on which the petitioners rely).
Wherefore your petitioners pray that it may be determined that the said A.B.* was not duly elected (or that the election was void)* (or) that (name) was duly elected, and ought to have so been declared.
1296 Niue Laws 2006 Vol 3
Dated at........................this...............................day of................20...............
Signatures: ..............................................
.................................................................
.................................................................
*Delete words which do not apply
1297
NIUE BANK ACT 1994
1994/177 – 28 March 1994
PART 5
CENTRAL BANK
32 Bank to act as Central Bank
33 Powers of Central Bank
PART 6
USE OF WORDS “BANK”, “BANKER” AND “BANKING”
34 “Bank”, “banker” and “banking”
35 Certain persons exempt from section 34
36 Power to require change of name or title
PART 7
REGISTRATION OF BANKS AND PRUDENTIAL
SUPERVISION OF REGISTERED BANKS
37 Registration and prudential supervision
38 Exercise of powers under this Part
39 Register
40 Application for registration
41 Voluntary removal of name from register
42 Offence
43 Determination of applications
44 Conditions of registration
45 Publication of principles
46 Cancellation of registration
47 Carrying on business in a prudent manner
48 Annual fee
49 Credit assessment of registered banks
50 Public disclosure of financial and other
information by registered banks
51 Disclosure statements to be signed
52 Bank may require disclosure statement to
be corrected
53 Interpretation
54 Content of advertisements by registered
banks
55 Regulations
56 Offence to advertise in contravention of
regulations
57 Bank may prohibit advertisements by
registered banks
58 Offences in relation to disclosure
statements and advertisements
59 Civil liability
60 Defences
1298 Niue Laws 2006 Vol 3
PART 8
FINANCIAL AND OTHER MATTERS
85 Financial year
86 Notional surplus income
87 Funding agreements
88 Contents of funding agreements
89 Funding agreements to be ratified by the
Assembly
90 Application of surplus income
91 Annual report and accounts
92 Contents of financial statements
93 Management statements
94 Auditors
95 Performance audit
PART 9
INTERNATIONAL COMMERCIAL BANK
96 Bank to act as International Commercial
Bank
97 Appointment of Board of International
Commercial Bank
98 Duties of Board of International
Commercial Bank
99 Powers of International Commercial Bank
100 Liabilities of International Commercial
Bank not to be charge against Niue
Government Account
PART 10
MISCELLANEOUS PROVISIONS
101 Isue of Bank notes
102 Obligations under this Act not limited
103 Regulations
104 Consents under regulations
105 Offences against regulations
106 Penalties for offences
107 Evidence
108 No action to lie against certain persons
109 [Spent]
To establish the Niue Bank and to confer certain functions and powers on the
Niue Bank
1 Short title
PART 1
PRELIMINARY
This is the Niue Bank Act 1994.
2 Interpretation
In this Act –
“Bank” means the Niue Bank constituted under this Act;
“Board” means the Board of Directors of the Bank constituted by section
21;
Niue Bank Act 1994
1299
“document” means a document in any form, whether signed or initialled or otherwise authenticated by its maker or not, and includes –
(a) Any writing on any material;
(b) Any information recorded or stored by means of any tape-recorder,
computer, or other device; and any material subsequently derived
from information so recorded or stored;
(c) Any label, marking, or other writing that identifies or describes
any thing of which it forms part, or to which it is attached by any
means;
(d) Any book, map, plan, graph, or drawing;
(e) Any photograph, film, negative, tape or other device in which one
or more visual images are embodied so as to be capable (with or
without the aid of some other equipment) of being reproduced;
“foreign exchange” means –
(a) The bank notes or other currency, postal notes or money orders of
any country other than Niue, the Cook Islands and New Zealand;
(b) Promissory notes and bills of exchange payable otherwise than in
New Zealand currency;
(c) A right to receive payment otherwise than in New Zealand currency;
(d) An obligation to make payment otherwise than in Niue currency;
(e) A security in respect of which any amount is payable in a country
other than Niue or is payable otherwise than in New Zealand
currency;
“Minister” means the Minister of Finance;
“registered bank” means a person whose name is entered in the register
maintained under section 39;
“security” means any interest or right to participate in any capital, assets,
earnings, royalties, or other property of any person, and includes –
(a) Any interest in or right to be paid money that is, or is to be, deposited
with, lent to, or otherwise owing by, any person (whether or not
the interest or right is secured by a charge over any property); and
(b) Any renewal or variation of the terms or conditions of any existing
security.
3 Act to bind the Government
This Act shall bind the Government.
4 Establishment of Bank
PART 2
THE NIUE BANK
(1) There is hereby established a Bank to be called the Niue Bank.
(2) The Bank shall be a body corporate with perpetual succession and a
common seal.
(3) Without limiting any other provision of this Act, the Bank shall, in the
exercise of its functions and powers under this Act, have the rights, powers and
privileges of a natural person.
(4) The common seal of the Bank shall be judicially noted in all courts and
for all purposes.
(5) The common seal shall be used only with the authority of the Board
and every instrument to which the seal is affixed shall be signed by the Minister
or a person appointed by the Board for that purpose.
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5 Branches and agencies
The Bank may establish branches and agencies and appoint agents in Niue
or elsewhere.
PART 3
FUNCTIONS AND POWERS OF NIUE BANK
6 Functions of the Bank
The Bank shall have the following functions and purposes –
(a) To act as a Central Bank under Parts 5 to 8;
(b) To act as an International Commercial Bank under Part 9; and
(c) To administer the Acts prescribed by regulations made under this
Act.
7 Dealing in foreign exchange
For the purposes of performing its functions and fulfilling its obligations
under this Act or any other Act, the Bank may deal in foreign exchange with such
persons, including the Crown, and on such terms and conditions as the Bank thinks
fit with the concurrence of Cabinet.
8 Foreign exchange gains and losses
(1) The Bank shall pay into the Niue Government Account any exchange
gains (whether realised or unrealised) made by the Bank as a result of dealing in
foreign exchange under section 7.
(2) The Minister shall upon the appropriation of the Assembly, pay to the
Bank out of the Niue Government Account the amount of any exchange losses
(whether realised or unrealised) incurred by the Bank as a result of dealing in
foreign exchange under section 7.
9 Foreign exchange
The Bank shall advise the Minister and Cabinet on –
(a) Foreign exchange rate systems;
(b) The management of foreign reserves;
(c) The operation of the foreign exchange market;
(d) Any other matters relating to foreign exchange.
10 Foreign reserves
(1) The Minister in concurrence with Cabinet shall in consultation with
the Bank, determine the level at which, or the levels within which, foreign reserves
shall be maintained for the purpose of enabling the Bank to exercise the powers
conferred by this Act.
(2) The Bank shall hold and maintain foreign reserves of that level or within
those levels and, for that purpose, but without limiting the power of the Bank
under this Act, may in concurrence with Cabinet –
(a) Acquire and deal in foreign currency;
(b) Deal in foreign currency on behalf of the Crown;
(c) Appoint any person to acquire and deal in foreign currency on
behalf of the Crown or the Bank.
11 Bank may raise loans
The Bank may, if it appears to be necessary or expedient in the public interest
to do so, raise loans from any person, organisation, or government, either within
or outside Niue, upon such terms and conditions as may be prescribed by Act.
Niue Bank Act 1994
1301
12 Lender of last resort
The Bank shall, if the Bank considers it necessary for the purpose of
maintaining the soundness of the Niue financial system, and only with the prior
approval of Cabinet, act as lender of last resort for the financial system.
13 Settlement account services
The Bank may provide settlement account services for financial institutions
on such terms and conditions as may be determined by agreement.
14 Financial sector policy advice
The Bank shall advise Cabinet and the Minister on matters relating to the
operation of the Niue financial system.
15 Government banking business
(1) The Bank may, under an agreement with the Minister, undertake all or
part of the banking business of the Government.
(2) Any such agreement may provide for the Bank to charge for the
provision of banking services.
16 Securities registry services
(1) The Bank may provide securities registry services for any person
including services in connection with –
(a) The issue, registration, exchange, transfer, or replacement of
securities;
(b) The calling and acceptance of tenders or applications for securities;
(c) The making or receiving of payment in respect of any security.
(2) Securities registry services may be provided for such remuneration,
and on such terms and conditions, as may be agreed by the Bank and the person
for whom they are provided.
17 Bank may require financial institution to supply information
(1) For the purposes of enabling the Bank to carry out the functions and
exercise the powers conferred on it by this Part, the Bank may, by notice in writing
to any financial institution, or by notice in the Gazette, require the institution or, as
the case may be, institutions of a certain class, to supply to the Bank such
information and data relating to the business of the institution or institutions of
the relevant class for such periods, and in such form, as may be specified in the
notice.
(2) Without limiting subsection (1), a notice may require information and data to be supplied relating to the assets and liabilities, income and expenditure (including interest rates charged and payable), fees and charges, obligations and commitments, and risk exposures of, and classes of transactions entered into by, that institution or class of institutions and any associated person and, where specified, in consolidated form, in respect of business carried on in Niue or elsewhere and whether as principal, broker, agent, or intermediary.
(3) Any notice given under this section may, by a subsequent notice, be revoked, varied, or amended by the Bank.
(4) Information and data required to be supplied under this section shall be supplied to the Bank at such place in Niue and at such time as are specified in the notice.
(5) A financial institution shall not be required to supply data or information under this section relating to the affairs of a particular customer or client.
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18 Failure to supply information
Every financial institution commits an offence if, without lawful justification
or excuse, it –
(a) Fails to comply in any respect with any of the provisions of section
17 or of any requirements of the Bank under that section; or
(b) Supplies any information or data which it is required to supply
under section 17 which is false or misleading in any material
particular.
19 Requirement that information be audited
(1) Where the Bank believes that any information or data supplied by a
financial institution under section 17 is, or may be, inadequate or inaccurate, it
may, by notice in writing to that financial institution, require that information or
data to be audited by an auditor approved by the Bank.
(2) Every financial institution commits an offence if without lawful
justification or excuse, it fails to comply with a requirement under subsection (1).
20 Powers
Without limiting section 4 or any other provision of this Act, the Bank, has
power, whether in Niue or elsewhere, to –
(a) Carry on the business of banking;
(b) Issue securities;
(c) Give a fixed or floating charge over all or any part of the undertaking
or property of the Bank;
(d) Enter into agreements or arrangements and obtain assurances
necessary or desirable for carrying out its functions and exercising
its powers;
(e) Carry on any business or exercise any powers, not inconsistent with
any other function of the Bank, which can be conveniently carried
on, or exercised in conjunction with its functions and the exercise
of its powers;
(f) Do any act or perform any function or duty imposed upon it or
required to be done under any other Act.
21 Board of Directors
PART 4
MANAGEMENT OF NIUE BANK
There shall be a Board of Directors of the Bank.
22 Duties of Board
Subject to this Act, the Board of the Bank shall –
(a) Keep under constant review the performance of the Bank in carrying
out its functions;
(b) Ensure that the Bank carries out the functions imposed on it by this
Act;
(c) Ensure that the resources of the Bank are properly and effectively
managed;
(d) Direct the exercise of powers granted to the Bank by this Act.
Niue Bank Act 1994
1303
23 Membership of Board
(1) The Board shall consist of 3 members.
(2) The Board shall comprise –
(a) The Minister;
(b) Two non-executive directors to be appointed by Cabinet.
(3) The validity of the acts of the Board is not affected by any vacancy in its
membership.
24 Term of office of non-executive directors
(1) Every non-executive director appointed under this Act shall be
appointed for terms not exceeding 2 years.
(2) A non-executive director may be reappointed.
(3) A non-executive director may, at any time, resign office by notice in
writing to the Minister.
25 Appointment of non-executive directors
In considering the appointment or reappointment of a person to the office
of non-executive director of the Bank, Cabinet shall have regard, in relation to
that office, to –
(a) That person’s knowledge, skill and experience; and
(b) The likelihood of any conflict between the interests of the Bank and
any interests which that person has or represents.
26 Extraordinary vacancies
(1) If a non-executive director dies, or resigns or is removed from office,
that office shall become vacant and the vacancy shall be deemed to be an
extraordinary vacancy.
(2) A non-executive director shall be deemed to have resigned from office
if that director –
(a) Is prohibited by section 27 from holding office as a director; or
(b) Fails, without the Board’s consent, to attend 3 consecutive meetings
of the Board.
(3) The manner of filling an extraordinary vacancy shall be the same
manner as prescribed by section 23.
(4) A person who is appointed to fill an extraordinary vacancy shall be
appointed for the residue of the term of the vacating director.
27 Disqualification of non-executive directors
No person shall be appointed, or reappointed to the office of non-executive
director of the Bank, or hold that office, if that person –
(a) Is an employee of a registered bank; or
(b) Is an undischarged bankrupt; or
(c) Has been convicted of any offence of dishonesty or any other offence
if that other offence is punishable by imprisonment for a term of 3
years or more; or
(d) Is a mentally disordered person.
1304 Niue Laws 2006 Vol 3
28 Removal from office of non-executive directors
Cabinet may, on the advice of the Minister, remove a non-executive director
of the Bank from office if Cabinet is satisfied that the director –
(a) Is unable, or has failed, to perform the duties of a director of the
Bank ; or
(b) Has been guilty of misconduct; or
(c) Has obstructed, hindered, or prevented the Board from discharging
the responsibilities of the Board.
29 Meetings of Board
(1) The Board of the Bank shall meet at least 3 times in each year.
(2) The Minister shall convene and preside at meetings of the Board.
(3) If the Minister is absent from a meeting, the non-executive directors
shall convene a meeting in the Minister ’s absence.
(4) (a) Decisions of the Board shall be made by a majority of the votes of
the directors present.
(b) If only 2 of the directors are present, the decision must be
unanimous.
(5) Subject to this section, the Board may regulate its own procedure.
30 Directors to disclose interests
(1) A director who is interested in a contract or proposed contract with the
Bank, or in the exercise or proposed exercise by the Bank of a power, shall declare
that interest at every meeting of the Board at which that contract or proposed
contract, or the exercise or proposed exercise of the power is considered by the
Board.
(2) A director who is interested in a contract or proposed contract or in the exercise or proposed exercise of a power shall not be entitled to vote on a resolution that relates to the contract or proposed contract or the exercise or proposed exercise of the power.
31 Fees and expenses of non-executive directors
The Bank shall pay the non-executive directors such fees as the Minister
after considering any recommendation by the Board, determines.
PART 5
CENTRAL BANK
32 Bank to act as Central Bank
The Bank shall act as the Central Bank of Niue under Parts 6 to 8.
33 Powers of Central Bank
In discharging its functions under section 32, the Bank shall have the powers
prescribed in sections 7 to 19.
PART 6
USE OF WORDS “BANK”, “BANKER” AND “BANKING”
34 “Bank”, “banker” and “banking”
(1) Except as otherwise provided in this Part, no individual or body
(whether incorporated or not) shall be formed or registered, carry on any business,
trade, or occupation under any name or title that includes the words “bank”,
“banker” or “banking”, or any of those words as part of any other word.
Niue Bank Act 1994
1305
(2) Every person or body who contravenes subsection (1) commits an offence and is liable on conviction to a fine not exceeding 50 penalty units in the case of an individual or to a fine not exceeding 50 penalty units in the case of a body corporate.
(3) For the purposes of this section and section 35, a reference to the words “bank”, “banker” or “banking” includes a reference to a translation of those words in another language.
35 Certain persons exempt from section 34
(1) Nothing in section 34 applies to –
(a) The Bank;
(b) A registered bank under this Act;
(c) Any body (whether incorporated or not) that is formed or registered
in a country other than Niue under a name or title that includes the
words “bank”, “banker” or “banking”, or any of those words as
part of any other word, that is authorised for the time being by the
Bank to use those words, or any of those words as part of any other
word, in connection with the establishment or operation of a
representative office in Niue;
(d) A subsidiary of a registered bank that is authorised for the time
being by the Bank to use those words, or any of those words as part
of any other word;
(e) [Spent]
(f) Any bank carrying on business in Niue at the time this provision is
enacted.
(2) Nothing in section 34 prevents a body (whether incorporated or not)
being formed or registered, or carrying on any business, trade or occupation, under
a name or title that includes the words “bank”, “banker” or “banking” where
those words signify –
(a) Any geographic place name; or
(b) The name of any town or road; or
(c) The surname of any person.
(3) An authorisation or consent under this section may be given subject to
such conditions as the Bank thinks fit.
(4) The Bank may, by notice in writing to the person to whom the
authorisation or consent has been given –
(a) Revoke the authorisation or consent;
(b) Vary, alter, or remove any condition of the authorisation or consent
or add a further condition to it.
36 Power to require change of name or title
(1) Where the Bank is satisfied that a person has contravened, or is
contravening, section 34 it may, by notice in writing to that person and whether or
not that person has been convicted of an offence against that section, require that
person to change its name or title.
(2) Every person to whom a notice has been given under subsection (1)
shall comply with the notice within 4 weeks after receiving it or within such longer
period as the Bank may allow.
1306 Niue Laws 2006 Vol 3
PART 7
REGISTRATION OF BANKS AND PRUDENTIAL SUPERVISION OF REGISTERED BANKS
37 Registration and prudential supervision
The Bank shall under this Part –
(a) Register banks; and
(b) Undertake prudential supervision of registered banks.
38 Exercise of powers under this Part
The powers conferred on the Cabinet, the Minister and the Bank by this
Part shall be exercised for the purposes of –
(a) Promoting the maintenance of a sound and efficient financial
system; or
(b) Avoiding significant damage to the financial system that could result
from failure of a registered bank.
39 Register
(1) The Bank shall maintain a register of persons to be known as “registered
banks”.
(2) The register shall be available for public inspection at the head office of
the Bank during normal business hours.
40 Application for registration
(1) No person who is not registered as a bank under this Act shall carry on
banking business in Niue.
(2) Applications to be registered as a registered bank shall be –
(a) Made in such manner as may be specified by the Bank; and
(b) Accompanied by payment of such fee as may be determined by the
Bank and approved by the Minister by notice in the Gazette.
(3) Every person who makes an application under this section shall furnish
to the Bank such information as may be required by the Bank to assist in
determining the application.
41 Voluntary removal of name from register
(1) A registered bank may, by notice in writing, require the Bank to remove
the name of that registered bank from the register on a date specified in the notice,
not being a date earlier than 14 days, or such shorter period as the Bank may
agree to, after the date the notice is given.
(2) The registered bank shall, within 7 days of giving that notice, give public
notice of the fact that it had given the notice to the Bank.
(3) The Bank shall remove the name of the registered bank from the register
on the date specified in the notice and shall give notice of the removal in the name
in the Gazette.
(4) Except with the consent of the Bank, a registered bank shall not give
notice under subsection (1) if –
(a) A notice has been given to that registered bank under section
67(1)(c)(i); or
(b) A person has been appointed under section 67(1)(c)(ii) to exercise,
in relation to that registered bank, the powers conferred by that
paragraph; or
(c) A person has been appointed under section 69 to carry out an
investigation of the affairs of that registered bank; or
(d) A notice is in force under section 79 in relation to that registered
bank.
Niue Bank Act 1994
1307
(5) The Bank may refuse to remove the name of a registered bank from the register if –
(a) A notice has been given to the registered bank under section
67(1)(c)(i); or
(b) A person has been appointed under section 67(1)(c)(ii) to exercise,
in relation to that registered bank, the powers conferred by that
paragraph; or
(c) A person has been appointed under section 69 to carry out an
investigation into the affairs of that registered bank; or
(d) A notice is in force under section 79 in relation to that registered
bank.
42 Offence
(1) No person other than a registered bank shall carry on banking business
in Niue or use any name, title, style, or designation or use any description which
represents or implies that that person is a registered bank.
(2) Every person who contravenes subsection (1) commits an offence and
is liable on summary conviction –
(a) In the case of an individual, to a fine not exceeding 50 penalty units;
and
(b) In the case of a body corporate, to a fine not exceeding 500 penalty
units.
(3) No person referred to in section 35(1) can be guilty of an offence under
this section.
43 Determination of applications
(1) The Bank shall not register any person as a registered bank unless it is
satisfied that the business carried on, or proposed to be carried on, by the applicant
consists of, or to a substantial extent consists of, or will to a substantial extent,
consist of, the borrowing and lending of money, or the provision of other financial
services, or both.
(2) In determining an application under section 40, the Bank shall have
regard to –
(a) The incorporation and ownership structure of the applicant;
(b) The size of the applicant’s business or proposed business;
(c) The ability of the applicant to carry on its business or the proposed
business in a prudent manner;
(d) The standing of the applicant in the financial market;
(e) In any case where the applicant is a body corporate incorporated
outside Niue or an unincorporated body having its head office or
principal place of business outside Niue, the law and regulatory
requirements relating to the licensing, registration or authorisation
of banks of the country in which that body is incorporated or in
which that unincorporated body has its head office or principal
place of business and their application to any registered bank having
its head office or principal place of business in Niue;
(f) In any case where the applicant is a subsidiary of any body corporate
incorporated outside Niue, the law and regulatory requirements
relating to the licensing, registration, or authorisation of banks of
the country in which the body corporate which the Bank considers
exercises ultimate control of the applicant is incorporated and their
application to any registered bank having its head office or principal
place of business in Niue;
(g) Such other matters as may be prescribed in regulations.
1308 Niue Laws 2006 Vol 3
(3) For the purposes of subsection (2)(g), Cabinet may on the advice of the Minister given under a recommendation of the Bank, make regulations prescribing additional matters to which the Bank shall have regard in considering applications for registration.
(4) The Bank shall give notice in the Gazette of the registration of any person as a registered bank under this section.
44 Conditions of registration
(1) A person may be registered as a registered bank unconditionally, or
subject to such conditions as the Bank may specify.
(2) The Bank may by notice in writing to a registered bank –
(a) In a case where the bank has been registered unconditionally or
has been deemed to have been registered, impose conditions of
registration;
(b) Vary or remove any condition, whether imposed on the registration
of the bank or under paragraph (a), or add to any such condition.
(3) The Bank shall not –
(a) Impose conditions of registration under subsection (2)(a); or
(b) Vary or add to conditions of registration under subsection (2)(b)
unless the registered bank is given notice in writing of the Bank’s
intention to do so, has a reasonable opportunity to make
submissions to the Bank, and the Bank has regard to those
submissions.
(4) The Bank may specify conditions that relate to any of the following
matters –
(a) The matters to which the Bank is required to have regard under section 43 in determining an application for registration including any matters prescribed by regulations made under that section; and
(b) The matters referred to in section 43 including any matters
prescribed by regulations made under that section.
45 Publication of principles
The Bank shall publish the principles on which it acts,or proposes to act –
(a) In determining applications for registration; and
(b) In imposing, varying, removing, or adding to conditions of
registration.
46 Cancellation of registration
(1) Cabinet may on the advice of the Minister given in accordance with a
recommendation of the Bank, cancel the registration of a registered bank.
(2) The Bank shall not make a recommendation under subsection (1) unless
it is satisfied –
(a) That the registered bank was registered on information that was
false or misleading in a material particular; or
(b) That the registered bank has suffered a material loss of standing in
the financial market since being registered; or
(c) If the registered bank is a body corporate –
(i) that an order has been made for the winding up of that body
corporate; or
(ii) that a resolution has been passed for the voluntary winding
up of that body corporate; or
Niue Bank Act 1994
1309
(iii) that a receiver has been appointed in respect of that body corporate; or
(d) If the registered bank is a partnership – (i) that the partnership is dissolved; or
(ii) that, if a member of the partnership is a body corporate, an event referred to in paragraph (c) has occurred in relation to that member; or
(iii) that a member of the partnership is adjudged bankrupt or has made a composition or arrangement with that member ’s creditors; or
(e) That a condition of registration has not been complied with; or
(f) That the registered bank has not carried on its business in a prudent
manner;
(g) That the registered bank has been involved in any illegal activity or
has been knowingly involved in the laundering of the proceeds of
sale of any prohibited narcotic substances or the laundering of the
proceeds gained from any other serious criminal activity, whether
that sale or laundering or other serious criminal activity occurred
in Niue or elsewhere; or
(h) That the registered bank has failed to comply with an obligation
imposed under this Act.
(3) The Bank shall not make a recommendation under subsection (1)
unless –
(a) The registered bank is given not less than 14 days’ notice in writing of the Bank’s intention to consider making the recommendation; and
(b) The registered bank has a reasonable opportunity to make
submissions to the Bank; and
(c) The Bank has regard to those submissions.
(4) A copy of any written submission made by the registered bank shall be
sent to the Minister together with any recommendation by the Bank.
(5) The Bank shall, as soon as practicable after the making of an order in
Cabinet cancelling the registration of a registered bank, give notice in writing to
the bank stating the grounds on which the Bank’s recommendation was made.
47 Carrying on business in a prudent manner
(1) In –
(a) Having regard, under section 43(2)(c) to the ability of an applicant
for registration as a registered bank to carry on its business or
proposed business in a prudent manner; or
(b) Determining under section 46(2)(f) that a registered bank has not
carried on its business in a prudent manner, the Bank shall confine
its consideration to the following matters –
(i) Capital in relation to the size and nature of the business or
proposed business;
(ii) Loan concentration or proposed loan concentration and risk
exposures or proposed risk exposures;
(iii) Separation of the business or proposed business from other
business and from other interests of any person owning or
controlling the applicant or registered bank;
(iv) Internal controls and accounting systems or proposed internal
controls and accounting systems;
(v) Such other matters as may be prescribed in regulations.
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(2) Cabinet may, on the advice of the Minister given in accordance with a recommendation of the Bank, make regulations prescribing additional matters for the purposes of subsection (1).
(3) The Board shall issue, in such manner as the Board may determine, guidelines for the purpose of interpreting any of the matters referred to in subsection (1)(b)(i).
48 Annual fee
(1) Every registered bank shall pay to the Bank an annual fee of such
amount as may be determined by the Bank, approved by the Minister, and notified
in the Gazette.
(2) Without limiting subsection (1) –
(a) Different fees may be determined for different classes of registered
banks;
(b) In determining fees the Bank may have regard to the anticipated
costs of the Bank in exercising the powers conferred by this Part.
49 Credit assessment of registered banks
(1) The Bank may by notice in writing to all registered banks or to all
members of any class of registered banks, require each of those banks –
(a) To undergo an independent assessment of its credit worthiness or
financial stability by a person or organisation nominated or
approved by the Bank; and
(b) To publish the results of that assessment in such manner as the
Bank directs.
(2) Every registered bank shall comply with a notice given under this
section.
50 Public disclosure of financial and other information by registered banks
(1) The Bank shall, by notice in the Gazette, prescribe the information which,
on the approval of the notice by Cabinet under subsection (5), shall be published
by all registered banks or any specified class of registered banks.
(2) The information shall be contained in a document to be known as a
“disclosure statement” and shall be published in the manner and on such occasions
as shall be specified in the notice.
(3) Without limiting the information which may be prescribed, a notice
under subsection (1) may prescribe information relating to –
(a) Directors, principal officers, secretaries, auditors, bankers, and
solicitors;
(b) Incorporation and ownership structure;
(c) Financial and accounting systems and controls;
(d) Assets and liabilities including asset and liability maturities;
(e) Income and expenditure;
(f) Fees and charges including interest rates charged and payable;
(g) Capital structure;
(h) Loan concentrations and risk exposures;
(i) Liquidity;
(j) Obligations and commitments including contingent liabilities;
(k) Foreign exchange and interest rate exposures;
(l) Pending proceedings and arbitrations;
(m) Acquisitions.
Niue Bank Act 1994
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(4) Without limiting subsection (1) or subsection (3), a notice under subsection (1) may –
(a) Prescribe information that is required to be contained under normal accounting principles in financial statements;
(b) Require the publication of financial statements and notes to those statements for any period or periods specified in the notice;
(c) Require financial statements and information to be published in consolidated form;
(d) Require financial information which is required to be published to
be taken from audited financial statements;
(e) Require financial statements and information which are required
to be published to be audited and to be accompanied by an auditor ’s
report.
(5) The Cabinet may, by order –
(a) In a case where a notice under subsection (1) prescribes information
to be published by all registered banks, approve that notice, and on
the coming into force of that order, every registered bank shall
publish that information in the form and in the manner prescribed;
(b) In a case where a notice under subsection (1) prescribes information
to be published by a specified class of registered banks, approve
that notice, and on the coming into force of that order, every
registered bank which is a member of that class shall publish that
information in the form and in the manner prescribed.
(6) A registered bank shall not be required to publish information relating
to the affairs of any particular customer or client of the bank.
(7) The Bank shall consult with the Government before it prescribes
information which shall be published and the manner in which it shall be
published, under this section, by registered banks or any specified class of
registered banks.
(8) If the auditor ’s report required under subsection (4)(e) is qualified in
any way, this may constitute a reasonable ground for the exercise of those powers
conferred on the Bank by sections 79 to 84.
51 Disclosure statements to be signed
Every disclosure statement which a registered bank is required to publish
under section 50 shall be dated and shall be signed –
(a) In the case of a body corporate, by every director of the body
corporate or by that director ’s agent authorised in writing; and
(b) In the case of a partnership, by every member of the partnership or
by that member ’s agent authorised in writing.
52 Bank may require disclosure statement to be corrected
Where the Bank considers that a disclosure statement published by a
registered bank –
(a) Contains information that is false or misleading; or
(b) Does not contain information which it is required to contain,
whether or not the information contained in the disclosure statement
is false or misleading as a result of the omission;
the Bank may, by notice in writing to the registered bank, require the registered
bank to –
(i) publish a disclosure statement that does not contain false or misleading information; or
1312 Niue Laws 2006 Vol 3
(ii) publish a disclosure statement that contains the information that was omitted; or
(iii) take such other corrective action as the Bank may specify in the notice.
53 Interpretation
For the purposes of sections 54 to 60 –
“advertisement” means a form of communication –
(a) That is to be, or has been, distributed to any person by any means;
and
(b) That is authorised or instigated by or on behalf of a registered bank
or prepared with the co-operation of, or by arrangement with, a
registered bank; and
(c) That contains, or refers to, an offer of debt securities by a registered
bank, or is reasonably likely to induce persons to subscribe for debt
securities of the registered bank;
“debt security” in relation to a registered bank, means any interest in or
right to be paid money that is, or is to be, deposited with, lent to, or
otherwise owing by, that registered bank (whether or not the interest
or right is secured by a charge over any property), and includes –
(a) A debenture, debenture stock, bond note, certificate of deposit, and
convertible note; and
(b) Any renewal or variation of the terms or conditions of any existing
debt security; and
(c) Any security that is declared by Cabinet, to be a debt security for
the purposes of this Act.
54 Content of advertisements by registered banks
(1) Every advertisement by a registered bank shall comply with the
requirements prescribed by regulations made under this Act.
(2) This section shall come into force on a date to be appointed by order of
Cabinet.
55 Regulations
(1) Cabinet may, on the advice of the Minister given in accordance with a
recommendation of the Bank, make regulations for the following purposes –
(a) Regulating advertising and advertisements by registered banks
including –
(i) prescribing the information, statements, certificates, documents,
or other matters that shall or shall not be contained in, or
endorsed on, or attached to, advertisements;
(ii) prohibiting or restricting the use in advertisements of prescribed
words, information, statements, sounds and images, graphics,
or other matters;
(iii) prescribing requirements as to the layout or presentation of
advertisements and the size of printing used in advertisements
– and different matters may be prescribed, prohibited, restricted,
specified, or required in respect of different classes of
advertisements;
(b) Prescribing offences in respect of the contravention of or non
compliance with any regulations made under paragraph (a), and
prescribing the fines, not exceeding, in the case of an individual 50
Niue Bank Act 1994
1313
penalty units, and in the case of a body corporate, 500 penalty units, that may be imposed in respect of any offence.
(2) The Bank shall consult with Cabinet before it makes a recommendation under subsection (1).
56 Offence to advertise in contravention of regulations
(1) If an advertisement that does not comply with the requirements
prescribed by regulations made under this Act is distributed to any person –
(a) The registered bank; and
(b) Every person holding office as a director of the registered bank at
the time the advertisement was distributed –
commits an offence.
(2) A registered bank that commits an offence against this section is liable
on conviction to a fine not exceeding 500 penalty units.
(3) An individual who commits an offence against this section is liable on
conviction to a fine not exceeding 50 penalty units.
(4) It is a defence to a prosecution for an offence against this section by a
person referred to in subsection (1)(b) if the defendant proves that the
advertisement was published without the defendant’s knowledge and consent.
(5) This section shall come into force on a date to be appointed by order by
Cabinet.
57 Bank may prohibit advertisements by registered banks
(1) Where, at any time, the Bank is of the opinion that an advertisement –
(a) Is likely to deceive, mislead, or confuse with regard to any matter
that is material to an offer of debt securities by a registered bank to
which it relates; or
(b) Is inconsistent with the most recent disclosure statement published
by the registered bank; or
(c) Does not comply with regulations made under this Act –
the Bank may make an order prohibiting the distribution of that advertisement or
any advertisement which relates to the offer of those securities.
(2) Any order may be made on such terms and conditions as the Bank
thinks fit.
(3) Where the Bank makes an order under this section –
(a) It shall forthwith notify the registered bank that the order has been
made and the reasons for making it; and
(b) It may notify any other person that the order has been made and
the reasons for making it.
(4) Every person who contravenes an order made under this section
commits an offence and is liable on conviction to a fine not exceeding 50 penalty
units.
(5) It is a defence to a charge under subsection (4) if the defendant proves that the advertisement was distributed –
(a) Without the defendant’s knowledge; or
(b) Without the defendant’s knowledge of the order.
(6) At any time after an order has been made under this section, the
registered bank shall be entitled to appear and be represented before the Bank
and the Bank, if it is satisfied that the order should not continue in force, may
revoke the order.
(7) This section shall come into force on a date to be appointed by order by
Cabinet.
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58 Offences in relation to disclosure statements and advertisements
(1) Every registered bank commits an offence if, without lawful justification
or excuse, it fails to publish information that is required to publish in a disclosure
statement under section 50.
(2) Where a disclosure statement that includes information that is false or
misleading is published by a registered bank, the registered bank and every person
holding office as a director of the registered bank at the time of publication of the
disclosure statement, commits an offence.
(3) Where an advertisement that contains information that is false or
misleading is distributed, the registered bank and every person holding office as
a director of the bank at the time of distribution of the advertisement, commits an
offence.
(4) A registered bank that commits an offence against this section is liable
on conviction to a fine not exceeding 500 penalty units.
(5) An individual who commits an offence against this section is liable on
conviction to imprisonment for a term not exceeding 2 years, or to a fine not
exceeding 50 penalty units.
(6) It is a defence to a prosecution for an offence against subsection (2) or
subsection (3), if the defendant proves that the information was immaterial or, in
the case of an individual, that the defendant had reasonable grounds to believe
and did, up to the publication of the disclosure statement, or the distribution of
the advertisement, as the case may be, believe that the information was true.
(7) This section shall come into force on a date to be appointed for the
order by Cabinet.
59 Civil liability
(1) Subject to section 60, the following persons are liable to pay
compensation to any person who sustains a loss by reason of subscribing for any
debt security issued by a registered bank in reliance on false or misleading
information contained in a disclosure statement or an advertisement, namely –
(a) The registered bank; and
(b) Every person holding office as a director of the registered bank at
the time of publication of the disclosure statement or the distribution
of the advertisement, as the case may be.
(2) This section shall come into force on a date to be appointed by order by
Cabinet.
60 Defences
(1) A person is not liable under section 59 in relation to false or misleading
information that is included in a disclosure statement or an advertisement if that
person proves that –
(a) The disclosure statement was published or the advertisement was
distributed without his or her knowledge or consent, and on
becoming aware of the publication or distribution he or she
forthwith gave notice to the Bank that it was published or
distributed without his or her knowledge or consent, and also gave
reasonable public notice that it was published or distributed without
his or her knowledge or consent; or
(b) After publication of the disclosure statement or the distribution of
the advertisement and before the securities were subscribed for, he
or she, on becoming aware of the false or misleading information,
withdrew his or her consent to the disclosure statement or the
Niue Bank Act 1994
1315
advertisement, forthwith gave notice to the Bank of the withdrawal of that consent, and also gave reasonable public notice of the withdrawal of the consent; or
(c) He or she had reasonable grounds to believe and did, up to the time of the subscription for the securities, believe that the statement was true.
(2) This section shall come into force on a date to be appointed by order by
Cabinet.
61 Supply of information for purposes of prudential supervision
(1) For the purposes of this Part, the Bank may, by notice in writing to any
registered bank or by notice in the Gazette applying to any specified class of
registered banks, require the bank, or as the case may be, banks of that class, to
supply to the Bank such information, data, and forecasts relating to the business,
operation, or management of the bank or banks of that class and for such periods
and in such form as may be specified in the notice.
(2) Without limiting subsection (1), a notice may require information and
data to be supplied relating to the financial and accounting systems and controls,
assets and liabilities, income and expenditure (including interest rates charged
and payable), fees and charges, obligations and commitments and risk exposures
of, and transactions entered into by, that registered bank or class of registered
banks and any associated person and, where specified, in consolidated form, in
respect of business carried on in Niue, or elsewhere and whether as principal,
broker, agent or intermediary.
(3) A notice given under this section may, by a subsequent notice, be
revoked, varied or amended by the Bank.
(4) Information, data, and forecasts required to be supplied under this
section shall be supplied to the Bank at such place in Niue and at such time as
may be specified in the notice.
(5) Every registered bank commits an offence if, without lawful justification
or excuse it –
(a) Fails to comply in any respect with any of the provisions of this
section or with any of the requirements of the Bank under this
section; or
(b) Supplies any information or data which it is required to supply
under this section which is false or misleading in a material
particular.
62 Requirement that information be audited
(1) The Bank may, by notice in writing to a registered bank, require any
information and data which that bank is required to supply under section 61 to be
audited by an auditor approved by the Bank.
(2) Every registered bank commits an offence if, without lawful justification
or excuse, it fails to comply with this section.
63 Bank may require report on financial and accounting systems
(1) The Bank may, by notice in writing to a registered bank, require that
registered bank to supply the Bank with a report, prepared by a person approved
by the Bank, on the financial and accounting systems and controls of that registered
bank.
(2) Every registered bank commits an offence if, without lawful justification or excuse, it fails to comply with this section.
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64 Disclosure of information to Bank by auditors
Every person who holds, or at any time has held, office as required by any
enactment, as an auditor of a registered bank, shall disclose to the bank information
relating to the affairs of that registered bank obtained in the course of holding that
office if, in the opinion of that person –
(a) The registered bank is insolvent or is likely to become insolvent or
is in serious financial difficulties; and
(b) The disclosure of that information is likely to assist, or be relevant
to, the exercise by the Bank of its powers under this Part.
65 Auditor to inform registered bank of intention to disclose
Every auditor shall, before disclosing any information to the Bank under
section 64 take reasonable steps to inform the registered bank of the intention to
disclose the information and the nature of the information.
66 Protection of auditors
(1) No civil, criminal, or disciplinary proceedings shall lie against any
auditor arising from the disclosure in good faith of information to the Bank under
section 64.
(2) No tribunal, body, or authority, having jurisdiction in respect of the
professional conduct of any auditor, shall make any order against, or do any act in
relation to, that person in respect of such disclosure.
(3) No information received by the Bank under section 64 shall be
admissible in evidence in any proceedings against the auditor concerned.
(4) Nothing in subsection (3) shall limit the admissibility of any information
obtained in any other way.
67 Powers to obtain information and documents
(1) Where the Bank has reasonable cause to believe –
(a) That any information or data supplied to the Bank by a registered
bank under section 61 is false or misleading in a material particular;
or
(b) That a registered bank has failed to comply with any requirement
to supply information, data, or forecasts under section 61; or
(c) That a registered bank has failed to comply with section 63, it may
–
(i) by notice in writing to that registered bank, require that
registered bank to supply to the Bank, within the time specified
in the notice, such information and data relating to the business,
operation and management of that registered bank as may be
specified in the notice; or
(ii) appoint, in writing, any person to enter and search any premises
and inspect, remove, and take copies of, any documents or
extracts from documents relating to the business, operation,
and management of that registered bank in the possession, or
under the control, of any person, and, where necessary, require
the reproduction in usable form of any information recorded
or stored in those documents.
(2) Every person commits an offence who, without lawful justification or
excuse, hinders, obstructs, or delays, in the conduct of any inspection under this
section, any person duly authorised to make such inspection.
Niue Bank Act 1994
1317
(3) Every registered bank commits an offence if, without lawful justification or excuse –
(a) It fails to comply with any requirement of the Bank under subsection
(1)(c)(i); or
(b) It supplies any information or data required to be supplied under
subsection 1(c)(i) which is false or misleading in a material
particular.
68 Requirements on entering and searching premises
(1) No person appointed under section 67(1)(c)(ii) shall enter and search
any premises, or inspect, remove, or take copies of any documents, or extracts
from documents, in the possession of, or under the control of, any person, or require
the reproduction in usable form of any information recorded or stored in any
documents, unless –
(a) The occupier of the premises, or the person who has possession of
the documents, agrees; or
(b) That person obtains a warrant under section 74.
(2) Every person authorised to enter and search any premises under a
warrant obtained under section 74 on first entering those premises, and, if
requested, at any subsequent time, produce –
(a) Evidence of that person’s authority to enter the premises; and
(b) Evidence of that person’s identity.
69 Investigation of affairs of registered bank
Where the Bank is satisfied that it is necessary or desirable for the purpose
of determining whether or not to exercise the powers conferred under section 79
that an investigation of the affairs of any registered bank should be carried out,
the Bank may appoint, in writing, any person to carry out an investigation of the
affairs of that registered bank.
70 Powers of person appointed to carry out investigation
(1) Any person appointed under section 69 may, for the purposes of
carrying out an investigation of the affairs of a registered bank –
(a) By notice in writing, require that registered bank, or any officer or
employee of that registered bank, or any other person, to –
(i) supply any information or data relating to the business,
operation, and management of the registered bank;
(ii) produce for inspection any documents of, or relating to, the
business, operation and management of that registered bank
in the custody, or under the control, of that registered bank,
officer, employee, or person;
(iii) where necessary, reproduce in usable form any information
recorded or stored in such documents;
(b) Take copies of any documents produced for inspection under
paragraph (a);
(c) Require any officer or employee of that registered bank, or any other
person, to answer any question relating to the business, operation,
and management of that registered bank.
(2) Subject to section 72, any person appointed under section 69 may, for
the purposes of carrying out an investigation of the affairs of the registered bank,
at any time –
1318 Niue Laws 2006 Vol 3
(a) Enter and search any premises;
(b) Inspect, remove and take copies of any documents, or extracts from
documents, relating to the business, operation and management of
that registered bank in the possession, or under the control, of any
person;
(c) If necessary, require any person to reproduce in usable form any
information recorded or stored in those documents.
71 Offences in relation to investigations
(1) Every person commits an offence who, without lawful justification or
excuse –
(a) Hinders, obstructs, or delays any person appointed to carry out an investigation under section 69, in carrying out that investigation; or
(b) Refuses to answer any question put to him or her by that person
under section 70; or
(c) Supplies any information required to be supplied under section 70
which is false or misleading in a material particular.
(2) Every registered bank commits an offence if, without lawful justification
or excuse –
(a) It fails to comply with any requirement of a person appointed to
carry out an investigation under section 69; or
(b) It supplies any information or data required to be supplied under
section 70(1) which is false or misleading in a material particular.
(3) A statement made by any person in answer to any question by a person
appointed under section 69 to carry out an investigation into the affairs of a
registered bank shall not be admissible in criminal proceedings against the maker
of the statement.
72 Requirements to be complied with by person carrying out investigation
(1) Any person who exercises any powers conferred by section 70(1) shall,
if requested, produce the instrument of that person’s appointment under section
69.
(2) No person who exercises any powers conferred by section 70(2) shall enter and search any premises, or inspect, remove and take copies of any documents or extracts from documents, or require the reproduction in usable form of any information recorded or stored in documents, unless –
(a) The occupier of the premises, or the person who has possession of
the documents, agrees; or
(b) That person obtains a warrant under section 74.
(3) Every person authorised to enter and search any premises under a
warrant obtained under section 74 shall, on first entering those premises and, if
requested, at any subsequent time, produce –
(a) Evidence of that person’s authority to enter the premises; and
(b) Evidence of that person’s identity.
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1319
73 Confidentiality of information
(1) This section applies to –
(a) Information, data, and forecasts supplied or disclosed to, or obtained
by –
(i) the Bank;
(ii) a person appointed under section 67(1)(c)(ii) or section 69 –
under, or for the purposes of, or in connection with the exercise
of powers conferred by this Part;
(b) Information and data derived from or based upon information, data,
and forecasts referred to in paragraph (a);
(c) Information relating to the exercise, or possible exercise, of the
powers conferred by this Part.
(2) Information, data, and forecasts to which this section applies shall not
be published or disclosed by the Bank, any officer or employee of the Bank, or a person appointed under section 67(1)(c)(ii) or section 69, except –
(a) With the consent of the person to whom the information relates; (b) To the extent that the information is available to the public under
any Act, or in a public document;
(c) In statistical or summary form arranged in such a manner as to
prevent any information published or disclosed from being
identified by any person as relating to any particular person;
(d) For the purposes of, or in connection with, the exercise of powers
conferred by this Part;
(e) In connection with any proceedings for an offence against this Act;
(f) To any central bank, authority, or body in any other country which
exercises functions corresponding to or similar to those conferred
on the Bank under this Part for the purposes of the exercise by that
central bank, authority, or body of those functions;
(g) To any person whom the Bank is satisfied has a proper interest in
receiving such information.
(3) No information, data, or forecasts shall be published or disclosed under
subsection (2)(f) or (g) unless the Bank is satisfied that satisfactory provision exists
to protect the confidentiality of the information, data, or forecasts published or
disclosed.
(4) No officer or employee of the Bank and no person appointed under
section 67(1)(c)(ii) or section 69 shall use any information, data, or forecasts to
which this section applies for a purpose not connected with the purpose for which
such information, data, or forecasts was, or were, supplied, disclosed, or obtained.
(5) No person to whom any information, data, or forecasts to which this
section applies is or are published or disclosed under subsection (2)(d) shall publish,
disclose, or use such information, data, or forecasts except –
(a) For the purposes of, or in connection with the exercise of powers
conferred by, this Part; and
(b) Under such conditions as may be specified by the Bank.
(6) No person to whom any information, data or forecasts to which this
section applies is or are published or disclosed under subsection (2)(a) or subsection
(2)(g) shall publish, disclose or use such information, data, or forecasts unless the
publication, disclosure, or use is –
(a) Authorised by the Bank; or
(b) Necessary or desirable in connection with the exercise of any
function or power conferred by any enactment.
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(7) Every person who contravenes this section commits an offence.
(8) Nothing in any other Act applies to information, data and forecasts to
which this section applies whether or not such information, data, and forecasts
has or have been published or disclosed to any person under this section.
74 Procedure for obtaining warrants
(1) If the Court is satisfied, on application in writing, made on oath, that
there are reasonable grounds for believing –
(a) That any information or data supplied to the Bank by a registered
bank under section 61 is false or misleading in a material particular;
or
(b) That a registered bank has failed to comply with any requirement
to supply information, data, or forecasts under section 61;
(c) That a registered bank has failed to comply with section 63 –
it may issue a warrant, in terms of section 75, to a person appointed under section
67(1)(c)(ii).
(2) If the Court is satisfied, on application in writing made on oath, that
there are reasonable grounds for believing that it is necessary for the purpose of
determining whether to exercise the powers conferred under section 79 that an
investigation of the affairs of a registered bank should be carried out, it may issue
a warrant, in terms of section 75, to a person appointed under section 69.
(3) Every warrant issued under subsection (1) shall state whether it is issued
under paragraph (a) or paragraph (b).
75 Effect of warrant
(1) Every warrant issued under section 74 authorises the person named in
it, at any time and, if necessary, by force, to –
(a) Enter and search the premises named in it;
(b) Inspect, remove, and take copies of, documents or extracts from
documents relating to the business, operation and management of
the registered bank in the possession, or under the control, of any
person;
(c) Where necessary, require any information recorded or stored in
those documents to be reproduced in usable form.
(2) The warrant shall continue in force for a period of 6 months or until the
purpose for which it was granted has been satisfied, whichever is the lesser.
(3) Every person named in the warrant shall, as soon as practicable after
removing any documents or extracts from documents from any premises, supply
a copy of the documents or extracts to the person from whom the documents or
extracts were removed.
76 Effect of proceedings
(1) Where any proceedings in any court in respect of the exercise of any
powers conferred by section 67 or section 69 or section 70, until a final decision in
relation to those proceedings is given, the powers may be, or may continue to be
exercised as if no such proceedings had been commenced, and no person shall be
excused from fulfilling any obligation under those sections by reason of those
proceedings.
(2) This section shall apply notwithstanding any other Act or rule of law.
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77 Effect of final decision that exercise of powers unlawful
In any case where it is declared in a final decision given in any proceedings
in respect of the exercise of powers conferred by section 67 that the exercise of any
powers conferred by that section is unlawful, to the extent to which the exercise of
those powers is declared unlawful –
(a) The Bank shall ensure that forthwith after the decision of the Court
is given –
(i) any information and data supplied by the registered bank under
section 67(1)(c) is destroyed;
(ii) any documents or extracts from documents obtained under an
inspection made under section 67(1)(c)(i) are returned to the
person previously having possession of those documents or
previously having them under his or her control and any copies
of such documents or extracts are destroyed;
(iii) any information derived from or based upon any such
information and data or documents or extracts is destroyed;
(b) No information and data supplied by the registered bank under
section 67(1)(c) and no documents or extracts from documents
obtained under an inspection made under section 67(1)(c)(i) shall
be –
(i) admissible in evidence in any proceedings;
(ii) used in connection with the exercise of any power conferred
by section 79.
78 Decision that exercise of powers under section 69 or 70 unlawful
In any case where it is declared in a final decision given in any proceedings
in respect of the exercise of powers conferred by section 69 or section 70 that the
exercise of any powers conferred by those sections is unlawful, to the extent to
which the exercise of those powers is declared unlawful –
(a) The Bank shall ensure that forthwith after the decision of the Court
is given –
(i) Any information or data obtained under section 70(1) is
destroyed;
(ii) Any documents produced for inspection under section 70(1)(a)
are returned to the person previously having possession of the
documents or previously having the documents under his or
her control and any copies of such documents or extracts from
documents are destroyed;
(iii) any documents or extracts from documents obtained under an
inspection made under section 70(2) are returned to the person
previously having possession of those documents or previously
having them under his or her control and any copies of such
documents or extracts from documents are destroyed;
(iv) any information derived from or based upon any such
information, documents or extracts is destroyed;
(b) No information or data obtained or documents produced for
inspection under section 70(1)(a) and no documents or extracts from
documents obtained under an inspection made under section 70(2)
shall be –
(i) admissible in evidence in any proceedings;
(ii) used in connection with the exercise of any power conferred
by section 79.
1322 Niue Laws 2006 Vol 3
79 Bank may require registered bank to consult
(1) If the Bank has reasonable grounds to believe that –
(a) A registered bank is insolvent or is likely to become insolvent; or
(b) A registered bank is about to suspend payment or is unable to meet
its obligations as and when they fall due; or
(c) The affairs of a registered bank are being conducted in a manner
prejudicial to the soundness of the financial system; or
(d) The circumstances of a registered bank are such as to be prejudicial
to the soundness of the financial system; or
(e) The business of a registered bank has not been, or is not being,
conducted in a prudent manner; or
(f) A registered bank has failed to comply with any requirement
imposed by or under this Act or regulations made under this Act;
or
(g) A registered bank has been convicted of an offence against this Act;
or
(h) A registered bank has failed to comply with a condition of its
registration –
the Bank may, by notice in writing, require the registered bank and any associated
person of the registered bank, while the notice is in force to consult with the Bank
as to the circumstances of that registered bank and methods of resolving any
difficulties facing it.
(2) If the Bank has reasonable grounds to believe that –
(a) An associated person of a registered bank is insolvent or is likely to
become insolvent; or
(b) An associated person of a registered bank is about to suspend
payment or is unable to meet its obligations as and when they fall
due; or
(c) The affairs of an associated person of a registered bank are being
conducted in a manner prejudicial to the soundness of the financial
system; or
(d) The circumstances of an associated person of a registered bank are
such as to be prejudicial to the soundness of the financial system –
the Bank may, by notice in writing, require that associated person, the registered
bank, and any other associated person of the registered bank while the notice is in
force to consult with the Bank as to the circumstances of that associated person
and methods of resolving any difficulties facing it.
(3) Every notice under subsection (1) or subsection (2) shall state the
grounds on which it is given.
(4) A registered bank or an associated person, as the case may be, that fails
to comply with a notice under this section commits an offence.
(5) The Bank may, at any time, revoke a notice given under this section.
80 Bank may give advice and assistance
(1) While a notice under section 79(1) is in force in relation to a registered
bank or an associated person, the Bank may –
(a) Give advice to the registered bank or associated person concerning
its affairs;
(b) Give advice and assistance in connection with the negotiation of
any sale or other disposition of the whole or any part of the capital
or business undertaking of that registered bank or associated person;
Niue Bank Act 1994
1323
(c) Give advice and assistance in connection with any scheme for resolving the difficulties of that registered bank;
(d) With the consent of the Minister, by notice in writing to the parties, approve the sale or other disposition of the whole or any part of the capital, or business undertaking, of the registered bank or associated person to any person specified in the notice.
(2) While a notice under section 79(2) is in force in relation to an associated person of a registered bank or the registered bank, the Bank may –
(a) Give advice to the associated person or the registered bank
concerning its affairs;
(b) Give advice and assistance in connection with the negotiation of
any sale or other disposition of the whole or any part of the capital
or business undertaking of that associated person or the registered
bank;
(c) Give advice and assistance in connection with any scheme for
resolving the difficulties of that associated person;
(d) With the consent of the Minister, by notice in writing to the parties,
approve the sale or other disposition of the whole or any part of the
capital, or business undertaking, of the associated person or the
registered bank to any person specified in the notice.
81 Bank may give directions
(1) While a notice under section 79(1) is in force in relation to a registered
bank or an associated person, the Bank may, with the prior consent of the Minister, give a direction in writing –
(a) Requiring that registered bank or associated person to carry on business or any part of its business under the direction;
(b) Requiring that registered bank or associated person to cease to carry on its business, or any part of its business in accordance with the direction;
(c) Requiring that registered bank or associated person to ensure that any officer or employee of the registered bank or associated person ceases to take part in the management or conduct of its business except with the permission of the Bank and so far as that permission extends;
(d) Requiring the registered bank or associated person in general meeting to remove or replace a director;
(e) Requiring the registered bank or associated person to take such
other action as may be specified in the notice.
(2) While a notice under section 79(2) is in force in relation to an associated
person of a registered bank or a registered bank, the Bank may, with the prior
consent of the Minister, give a direction in writing –
(a) Requiring that associated person or the registered bank to carry on
business, or any part of its business, in accordance with the direction;
(b) Requiring that associated person or the registered bank to cease to
carry on its business, or any part of its business under the direction;
(c) Requiring the associated person or registered bank to ensure that
any officer or employee of the associated person or the registered
bank ceases to take part in the management or conduct of its
business except with the permission of the Bank and so far as that
permission extends;
(d) Requiring that associated person or the registered bank in general
meeting to remove or replace a director;
1324 Niue Laws 2006 Vol 3
(e) Requiring that associated person or the registered bank to take such other action as may be specified in the notice.
(3) The Bank may, with the consent of the Minister, amend or modify a direction given under this section or revoke a direction and give another direction in its place, and may, at any time, revoke a direction.
82 Offence to contravene directions
(1) Every person commits an offence who, being a registered bank or
associated person, without lawful justification or excuse, contravenes, or fails to
comply with, a direction under section 81.
(2) Every person commits an offence who, being an officer or employee of
a registered bank or of an associated person, without lawful justification or excuse,
obstructs, hinders or prevents that registered bank or associated person giving
effect to any direction given under section 81.
83 Offence to disclose giving of notice
(1) Subject to subsections (2) and (3) every person commits an offence who
discloses that a notice has been given under section 79 or that a direction has been
given under section 81.
(2) Nothing in subsection (1) applies to the disclosure or publication of the
fact that a notice or direction has been given where the disclosure or publication is
made –
(a) To any professional or financial adviser of the registered bank or associated person to which the notice or direction relates;
(b) With the written consent of the Bank, for the purposes of the sale or other disposition, or the possible sale or other disposition, of the whole or any part of the capital, or business undertaking, of the registered bank or associated person;
(c) By the Bank or with the written consent of the Bank –
(i) to the public; or
(ii) to any person who has a proper interest in knowing that the
notice or direction has been given.
(3) Nothing in subsection (1) applies to the disclosure or publication of the
fact that a direction has been given under section 81(1)(c) or (d) or section 81(2)(c)
or (d) for the purpose of giving effect to that direction.
84 Miscellaneous provisions with respect to notices and directions
(1) A notice given under section 79 and a direction given under section 81
shall be deemed to have been given on delivery to the head office, registered office
or principal place of business in Niue of the registered bank or associated person.
(2) Where the Bank approves the sale or other disposition under section
80 of the whole or any part of the capital, or business undertaking, of a registered
bank or any associated person to any person, the provision of any enactment
requiring any consent, licence, permission, clearance or other authority shall not
apply in relation to that sale or disposition.
85 Financial year
PART 8
FINANCIAL AND OTHER MATTERS
The Bank’s financial year shall end on 30 June in each year or on such other date as the Board may decide.
Niue Bank Act 1994
1325
86 Notional surplus income
For the purposes of section 90 “notional surplus income”, in relation to a
financial year of the Bank, means the gross income of the Bank in that year, after –
(a) Deducting the amount of income estimated to be paid or applied
in meeting the expenditure (other than interest expenditure) of the
Bank in carrying out the functions and exercising the powers
referred to in section 87(1) –
(i) as determined under the relevant funding agreement; or
(ii) if a funding agreement has not been ratified under section 89,
as determined under the funding agreement applying to the
immediately preceding financial year;
(b) Deducting the expenditure (other than interest expenditure)
incurred by the Bank in respect of that year in carrying out the other
functions of the Bank;
(c) Deducting interest expenditure incurred by the Bank in carrying
out any of its functions;
(d) Deducting any provision made under generally accepted
accounting practice (other than those taken into account under
paragraphs (a) and (b));
(e) Deducting any net income derived by the Bank from its other
functions as shown in the financial statements of the Bank for that
financial year;
(f) Adding any net loss incurred by the Bank from its other functions
as shown in the financial statements of the Bank for that financial
year.
87 Funding agreements
(1) Funding agreements shall be entered into by the Minister and the Board
which shall specify the amount of income of the Bank to be paid or applied in
meeting the expenditure incurred by the Bank in each financial year in carrying
out the functions imposed and exercising the powers conferred by this Act and
any other Act.
(2) There shall be a funding agreement applying for every financial year
and each funding agreement shall apply to a period that comprises 3 consecutive
financial years.
(3) The Minister and the Board may by agreement –
(a) Vary the provisions of a funding agreement; or
(b) Terminate a funding agreement and enter into a new funding
agreement.
88 Contents of funding agreements
Every funding agreement shall be in writing and –
(a) Shall make provision for the total expenditure to be incurred by
the Bank in carrying out the functions and exercising the powers
specified in section 87(1);
(b) Shall make provision for such items as may under generally
accepted accounting practice, properly be taken into account in
determining the expenditure applicable to those functions and
powers;
(c) May provide for the extent, if any, to which any material change in
the nature or extent of the work undertaken by the Bank in respect
of any of those functions or powers shall require the total level of
expenditure to be redetermined between the Board and the Minister;
1326 Niue Laws 2006 Vol 3
(d) May make provision for such other matters, not being matters that are inconsistent with this section, as the Board and the Minister may think fit.
89 Funding agreements to be ratified by the Assembly
(1) On the sitting day immediately following a funding agreement being
entered into, or a funding agreement being varied, the Minister shall lay a copy of
the agreement or the variation before the Assembly.
(2) No funding agreement, and no variation of a funding agreement, shall
be effective for the purposes of this Act unless it is ratified by a resolution of the
Assembly.
90 Application of surplus income
(1) The amount by which, in any financial year, the actual net income of
the Bank as shown the financial statements of the Bank for that year exceeds the
notional surplus income for that year, calculated under section 86, shall be paid or
credited to the reserves of the Bank.
(2) The amount by which in any financial year the notional surplus income
for that year, calculated under section 86, exceeds the actual net income of the
Bank for that year, as shown in the financial statements of the Bank for that year,
shall be deducted from the reserves of the Bank.
(3) An amount equal to the amount of the notional surplus income
calculated under section 86 for each financial year shall be paid or credited, at the
direction of the Minister, after consultation with the Bank –
(a) To the reserves of the Bank or to the Niue Government Account; or
(b) To both the reserves of the Bank and to the Niue Government
Account in proportions determined by the Minister after
consultation with the Bank.
(4) In determining the amount of the notional surplus income to be credited
to the reserves of the Bank, the Minister shall have regard to –
(a) The capital requirements of the Bank; and
(b) The views of the Board; and
(c) Any other relevant matters.
91 Annual report and accounts
(1) Within 6 months after the end of each financial year the Bank shall
deliver to the Minister –
(a) A report on the operations of the Bank during that financial year;
(b) Audited financial statements for that financial year;
(c) The auditor ’s report on those financial statements;
(d) A statement of the projected income and expenditure for the next
financial year.
(2) The report referred to in subsection (1)(a) shall contain such information
as is necessary to enable an informed assessment to be made of the Bank’s
performance in carrying out its functions during that year.
(3) The documents referred to in subsection (1) shall, by virtue of this
section, stand referred to the Assembly.
Niue Bank Act 1994
1327
92 Contents of financial statements
(1) The financial statements shall be prepared under generally accepted
accounting practice and shall include –
(a) A statement of the Bank’s financial position as at its balance date;
(b) An operating statement reflecting the income and expenses of the
Bank for that year by reference to the functions carried out by the
Bank;
(c) A statement of cash flows reflecting the Bank’s cash flow for that
year;
(d) A statement of the Bank’s commitments as at the balance date;
(e) A statement of the Bank’s contingent liabilities as at the balance
date;
(f) A statement of accounting policies;
(g) Such other statements as are necessary to fairly reflect the financial
operations of the Bank for that year and its financial position at the
end of that year;
(h) Comparative actual figures for the previous financial year for
paragraphs (a) to (e) and, where appropriate paragraph (g).
(2) The financial statements shall show separately–
(a) Any payments made by the Bank under section 8(1); and
(b) Any payments made by the Minister to the Bank under section 8(2).
93 Management statements
(1) The financial statements of the Bank shall be accompanied by a
management statement signed by the Board.
(2) The management statement shall comprise –
(a) A statement of the management’s responsibility for the preparation
of the annual financial statements and the judgments used in them;
(b) A statement of the management’s responsibility for establishing and
maintaining a system of internal control designed to provide
reasonable assurance as to the integrity and reliability of financial
reporting;
(c) A statement that, in the opinion of the management, the annual
financial statements for the financial year fairly reflect the financial
position and operations of the Bank.
94 Auditors
(1) The Minister may appoint one or more persons (whether as individuals
or as the members of any firm or firms), being persons qualified for appointment
as auditors of a company under the Companies Act 1955 (NZ) or Companies Act
1993 (NZ) to be the auditor or auditors of the Bank.
(2) Every appointment shall be for a term not exceeding 2 years, but any
person appointed as auditor shall continue in office until a successor comes into
office.
(3) Any person appointed as auditor shall be eligible for reappointment. (4) The auditor or auditors shall be entitled to receive from the funds of
the Bank such fees as the Board determines.
1328 Niue Laws 2006 Vol 3
95 Performance audit
(1) Cabinet on the advice of the Minister may appoint one or more persons
(whether as individuals or as members of any firm or firms) to carry out an
assessment of the performance by the Bank of its functions and of the exercise by
the Bank of its powers under this Act.
(2) As soon as practicable after completing an assessment, the person
appointed shall submit a report to the Minister setting out the results of that
assessment.
(3) The report shall by virtue of this section, stand referred to the Assembly.
(4) Any person appointed to conduct an assessment under this section,
for the purpose of conducting that assessment –
(a) Shall have full access to all books and documents that are the
property of or that are under the control of any person relating to
the Bank or its affairs;
(b) May require any director, officer or employee of the Bank or any
other person to answer any questions relating to the Bank or its
affairs;
(c) May, by notice in writing to any person, require that person to
deliver any books or documents relating to the Bank or its affairs in
the possession or under the control of that person and may take
copies of them or extracts from them.
(5) Nothing in subsection (4) limits or affects section 74.
(6) The fees of the person appointed to carry out an assessment under this
section shall be paid out of the funds of the Bank.
PART 9
INTERNATIONAL COMMERCIAL BANK
96 Bank to act as International Commercial Bank
The Bank shall act as an International Commercial Bank under this Part.
97 Appointment of Board of International Commercial Bank
(1) The Board shall, on the advice of the Cabinet, appoint a board to
administer the functions and powers of the International Commercial Bank.
(2) This board shall be known as the International Commercial Bank Board.
(3) The International Commercial Bank Board shall consist of 3 members.
(4) The International Commercial Bank Board shall comprise –
(a) A Chief Executive to be appointed by Cabinet;
(b) Two non-executive directors to be appointed by Cabinet on the
advice of the Minister;
(5) A member of the Board of the Niue Bank shall not be a member of the
International Commercial Bank Board at any one time.
(6) The members of the International Commercial Bank Board shall be
deemed officers of the Bank for the purposes of section 73 and directors for the
purposes of section 106.
(7) Sections 24 to 31 shall apply to the operations and membership of the
International Commercial Bank Board.
Niue Bank Act 1994
1329
98 Duties of Board of International Commercial Bank
Subject to this Act, the International Commercial Bank Board shall –
(a) Keep under constant review the performance of the International
Commercial Bank in carrying out its functions;
(b) Ensure that the International Commercial Bank carries out the
functions imposed on it by this Act;
(c) Ensure that the resources of the International Commercial Bank are
properly and effectively managed;
(d) Direct the exercise of the powers granted to the International
Commercial Bank by this Act.
99 Powers of the International Commercial Bank
(1) The International Commercial Bank shall have the power to enter into
such transactions as the Board determines are for the benefit of Niue.
(2) The International Commercial Bank shall have all the powers associated
with a commercial bank including the following –
(a) The power to incorporate and/or register a company; and
(b) The power to give security over its assets and undertaking.
(3) In discharging its functions under section 96, the International
Commercial Bank may exercise those powers specified in sections 7 to 19 if the
Board gives its prior consent to such exercise.
100 Liabilities of International Commercial Bank not to be charge against the Niue Government Account
(1) Any liability or obligation incurred by the International Commercial Bank as a result of performing its duties or exercising any power under this Act shall not be a charge against the Niue Government Account.
(2) The Government Loans Act 1980 shall not apply to any liability or obligation incurred by the International Commercial Bank as a result of performing its duties or exercising any power under this Act.
101 Issue of Bank notes
PART 10
MISCELLANEOUS PROVISIONS
(1) It shall not be lawful for any Bank to issue bank notes in Niue.
(2) Any person who contravenes subsection (1) commits an offence and is
liable on conviction to a fine not exceeding 1000 penalty units.
102 Obligations under this Act not limited
An obligation or limitation imposed on a person by any other Act or
instrument or by any trust or agreement shall not prevent or excuse that person
from complying with any provision of this Act or any regulation made under it or
with any direction, notice, requirement or condition given or imposed under that
provision.
1330 Niue Laws 2006 Vol 3
103 Regulations
Cabinet may make regulations for all or any of the following purposes –
(a) Providing for those Acts to be administered by the Bank under
section 6;
(b) Providing for such matters as are necessary to enable the Minister
or the Bank to exercise any powers and functions conferred on the
Minister or the Bank by this Act or by any regulation made for any
of the purposes of this Act;
(c) Providing for the granting, refusal and revocation of consents,
permissions and exemptions in respect of any matters to which any
regulations made under this Act relate; and authorising the
imposition, variation, and revocation of conditions subject to which
such consents, permissions and exemptions may be granted;
(d) Providing for the furnishing of information and the production of
books or documents to the Minister or the Bank or any other person
for any of the purposes of any such regulations (whether or not the
effect of doing so may be to require the furnishing of information,
or the production of books or documents, that will reveal the identity
or affairs or any particular person); and providing for the verification
of any such information; and providing that any such books or
documents may be copied, and may be retained or impounded, by
any person or persons to whom they are produced;
(e) Authorising the Minister or the Bank or any other person to exercise
any discretionary power or authority for the purposes of any such
regulations;
(f) Providing for the delegation of any of the powers or functions of
the Minister (including the power of delegation) or the Bank under
any such regulations;
(g) Providing for and regulating the issue, registration, transfer, control
and redemption of any securities issued by the Bank;
(h) Prescribing forms for the purposes of this Act or of any such
regulations, in any case where a form is not prescribed by this Act;
(i) Providing for and regulating the giving or service of notices for the
purposes of this Act or of any such regulations, and the effect of
such notices;
(j) Prescribing fees to be charged by the Bank in respect of any matter
under this Act;
(k) Prescribing offences against any such regulations and prescribing
fines not exceeding in respect of any such offence 500 penalty units
and, in the case of a continuing offence, 5 penalty units for every
day on which the offence has continued;
(l) Providing for such matters as are contemplated by or necessary for
giving full effect to this Act and its due administration.
104 Consents under regulations
(1) If a transaction is entered into or an instrument is executed without the
prior consent of the Minister or the Bank required by any regulations made under
this Act, the Minister or the Bank, as the case may be, may at any time consent to
the entry into the transaction or the execution of the instrument.
(2) Subject to the terms of the consent any transaction or instrument and
any relationship or interests created by it which would be invalid or unenforceable
without that consent shall, on the giving of that consent, be valid and enforceable
Niue Bank Act 1994
1331
as if the consent had been given before the transaction was entered into or the instrument executed.
(3) Consent may be given –
(a) In respect of such transactions, instruments, or persons or classes
of transactions, instruments or persons as the Minister or the Bank
may determine or in respect of any specified transaction, instrument
or person;
(b) Wholly or partly and either unconditionally or subject to such
conditions as the Minister or the Bank thinks fit.
(4) A consent to the entry into any transaction or the execution of any
instrument shall be deemed to be a consent given under the regulations requiring
consent.
105 Offences against regulations
(1) Every person commits an offence against this Act who –
(a) With intent to deceive, makes any false or misleading statement or
any material omission in –
(i) any offer or declaration made for the purposes of any
regulations under this Act; or
(ii) any communication with, or application to, the Minister or the
Bank or any other person (whether in writing or otherwise) for
the purposes of those regulations;
(b) Resists, obstructs, or deceives any person who is exercising or
attempting to exercise any power or function under any such
regulations;
(c) Without lawful excuse, acts in contravention of or fails to comply
in any respect with any such regulations or any direction, notice,
requirement or condition given or imposed under any such
regulations.
(2) Nothing in subsection (1) limits section 103(k).
106 Penalties for offences
Every person who commits an offence against this Act for which no penalty
is provided except in this section is liable on conviction –
(a) In the case of an individual to imprisonment for a term not exceeding
3 months or to a fine not exceeding 50 penalty units;
(b) In the case of a body corporate, to a fine not exceeding 500 penalty
units.
107 Evidence
(1) A copy of a resolution of the Bank certified by the Board to be correct
shall in the absence of proof to the contrary be sufficient evidence of the resolution
in any proceedings.
(2) A certificate signed by the Board to the effect that –
(a) Any approval or consent required under any Act has or has not
been given by the Bank, or is or is not for the time being in force; or
(b) Any document has been duly signed by or on behalf of the Bank or
the Board –
shall in the absence of proof to the contrary be sufficient evidence of the matters
stated in it in any proceedings.
(3) Any certificate purporting to have been signed by the Board shall, in
the absence of proof to the contrary, be deemed for all purposes to have been duly
signed by the Board.
1332 Niue Laws 2006 Vol 3
108 No action to lie against certain persons
Notwithstanding any other provision of this Act, no action shall lie against the Government, the Minister, the Bank, the Board, or any director or employee of the Bank in respect of the performance of their functions or duties under this Act.
109 [Spent]
1333
NIUE CERTIFICATION AUTHORITY ACT 1978
1978/36 – 14 February 1978
|
1 |
Short title |
5 |
Functions of Authority |
|
2 |
Interpretation |
6 |
Use of common seal |
|
3 |
Niue Certification Authority established |
7 |
Regulations |
|
4 |
Meetings |
8 |
Expenses of Authority |
To establish the Niue Certification Authority and to define its functions and powers
1 Short title
This is the Niue Certification Authority Act 1978.
2 Interpretation
In this Act –
“Authority” means the Niue Certification Authority established under
section 3;
“Minister” means the Minister for Education;
“trade” means any trade in connection with which the Authority considers
it desirable to conduct examinations or issue certificates.
3 Niue Certification Authority established
(1) There is hereby established for the purposes of this Act the Niue
Certification Authority.
(2) The Authority shall consist of –
(a) The Secretary to the Government, who shall be the Chairman;
(b) The Director of Public Works;
(c) The Director of Education;
(d) Two other officers appointed for a period of 3 years by the Cabinet.
4 Meetings
(1) Meetings of the Board shall be held at such time and places as the
Authority or the Chairman determines.
(2) A quorum shall consist of 3 members of the Authority.
(3) Every question before the Authority shall be determined by a majority
of the votes of the members present at a meeting of the Authority.
(4) As often as the office is vacant the Authority shall appoint a Deputy
Chairman who shall hold office, while he continues to be a member of the Authority,
for a term of 3 years, and who may be reappointed.
1334 Niue Laws 2006 Vol 3
(5) (a) The Chairman shall preside at all meetings at which he is present. (b) In the absence of the Chairman from any meeting the Deputy
Chairman shall preside.
(c) In the absence of both the Chairman and Deputy Chairman from
any meeting the members present shall appoint one of their number
to preside at that meeting.
(6) The person presiding at any meeting of the Authority shall have a
deliberative vote and, in the case of an equality of votes, shall have a casting vote.
(7) Except as expressly provided in this Act or in regulations under this
Act, the Authority may regulate its procedure in such manner as it thinks fit.
5 Functions of Authority
(1) The functions of the Authority shall be –
(a) To make provision for the examination of persons practising or
intending to practise any trade calling or profession who desire to
present themselves for examination;
(b) To make provisions for the examination of public servants who are
studying for the Niue Public Service Administration Certificate and
who desire to present themselves for examination;
(c) To grant or issue diplomas or certificates of his proficiency in any
trade, calling or matter relating to any trade calling or profession;
(d) To grant or issue diplomas or certificates to any public servant who
has satisfied the course requirements for the Niue Public Service
Administration Certificate.
(2) The Authority may expand any moneys and generally take any action
for any purpose that in its opinion is ancillary to its functions as defined in
subsection (1). Without limiting the general power conferred under subsection (1)
it is hereby declared that the Authority may –
(a) Co-opt, if necessary, any person or persons to advise the Authority
in connection with any of its functions under subsection (1);
(b) With the approval of Cabinet, appoint such Advisory or Technical
Committee to advise the Authority on such matters within the scope
of its functions and powers as are referred to them by the Authority,
and appoint any person to be a member of any such Committee,
notwithstanding that he is not a member of the Authority;
(c) Charge fees for entry for examination.
6 Use of common seal
The common seal of the Authority shall not be affixed to any document,
other than a diploma or certificate issued by the Authority, except under a
resolution of the Authority, and the fixing of the seal to any such document shall
be attested by the Minister and the Chairman.
7 Regulations
Cabinet may make all such regulations that may be necessary or expedient
for giving full effect to this Act and for the due administration of it.
8 Expenses of Authority
All payments made in the course of the administration of this Act shall be
made out of money which the Authority receives in exercise of its functions from
fees and otherwise, and, to the extent that money is insufficient, shall be made out
of money appropriated by the Assembly for the purposes of the Department of
Education.
1335
NIUE CULTURAL COUNCIL ACT 1986
1986/109 – 16 June 1986
|
1 |
Short title |
7 |
Annual Report |
|
2 |
Interpretation |
8 |
Use of the common seal |
|
3 |
Establishment of the Niue Cultural Council |
9 |
Regulations |
|
4 |
Functions of the Council |
10 |
Expenses of the Council |
|
5 |
Meetings | ||
|
6 |
Officers |
To establish the Niue Cultural Council to promote all aspects of work connected with the natural history and material culture of Niue and to define the functions and powers of the Council
1 Short title
This is the Niue Cultural Council Act 1986.
2 Interpretation
In this Act –
“Council” means the Niue Cultural Council established under section 3;
“historic site” means a location of significant historic connections, often
associated with a famous person or persons or event;
“oral tradition” interprets as an expression of all signs, spoken or gestural,
musical or visual, produced by man within the given culture.
3 Establishment of Niue Cultural Council
(1) There is hereby established for the purposes of this Act a Niue Cultural
Council.
(2) The Council shall consist of –
(a) A Chairman; and
(b) Four other members appointed by Cabinet.
(3) At least 2 members of the Council shall not be members of the Niue
Public Service.
(4) Except as otherwise provided in this Act, every member of the Council
shall be appointed for a term of 3 years and may be reappointed for a like term.
(5) Any member of the Council may at any time be removed from office
by Cabinet for disability, neglect of duty or misconduct proved to the satisfaction
of Cabinet, or may, at any time, by written notice delivered to Cabinet regarding
that member ’s office.
(6) Any member of the Council who ceases permanently to reside in Niue
shall, upon such cessation, be deemed to have resigned from office.
(7) If any member of the Council dies or otherwise ceases to be a member
of the Council, Cabinet shall appoint some other person to be a member of the
Council for the balance of the term for which the vacating member of the Council
was appointed.
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(8) Every member of the Council, unless that member sooner ceases to be a member of the Council otherwise than by effluxion of time, shall continue to hold office as a member of the Council until a successor comes into office, notwithstanding that the term for which that member was appointed may have expired.
(9) In any case in which Cabinet is satisfied that any member of the Council
is temporarily incapacitated by reason for illness, temporary absence from Niue
or other sufficient cause from performing the duties of his office, Cabinet may in
writing appoint a deputy to act for such member during the incapacity of such
member, and any such deputy shall, whilst acting as such, be deemed another
member of the Council, as the case may be; and no such appointment of a deputy
and no acts done by a deputy as such shall, in any proceedings or otherwise, be
questioned on the grounds that the occasion of the appointment has not arisen or
has ceased.
4 Functions of the Council
(1) The functions of the Council shall be –
(a) To promote all aspects of work connected with culture and
technology including documentation, conservation and repatriation
of artifacts;
(b) To encourage and foster the study of oral traditions, language and
creative and performing arts in their traditional and contemporary
forms;
(c) To encourage the promotion of salvage archaeology and the
conservation of archaeological materials, sites and monuments; and
(d) To regulate and control the use and development of historic sites.
(2) Without limiting the general power in subsection (1), it is hereby
declared that the Council may –
(a) Co-opt, if necessary, any person or persons to advise the Council in
connection with any of its functions under subsection (1);
(b) Appoint such Advisory or Technical Committee to advise the
Council on such matters within the scope of its functions and powers
as referred to them by the Council, and appoint any person to be a
member of any such Committee, notwithstanding that such person
shall not be a member of the Council.
5 Meetings
(1) The meetings of the Council shall be held at such time and places as
the Council or the Chairman of it determines.
(2) At all the meetings of the Council, 3 members of the Council shall form
a quorum.
(3) As often as the office is vacant, the Council shall appoint a Deputy
Chairman who shall hold office whilst still a member of the Council, and who
may be reappointed.
(4) (a) The Chairman shall preside at all its meetings.
(b) In the absence of the Chairman from any meeting the Deputy
Chairman shall preside.
(c) In the absence of both the Chairman and Deputy Chairman from
any meting, the members present shall appoint one of their number
to preside at that meeting.
(5) The person presiding at any meeting of the Council shall have a
deliberate vote and, in the case of an equality of votes, shall have a casting vote.
Niue Cultural Council Act 1986
1337
(6) All operations before the Council shall be determined by a majority of the votes of the members present at a meeting of the Council.
(7) The Council shall cause minutes to be made in a book or books provided for that purpose.
6 Officers
There may be appointed by the Niue Public Service Commissioner such
officers considered necessary to assist the Council in carrying out its functions
and representatives.
7 Annual Report
The Council shall be responsible to and shall report to the Government
annually through the Minister in charge of Cultural Affairs.
8 Use of the common seal
The common seal of the Council shall not be affixed to any document,
writing or other instrument except in the presence of at least 3 members of the
Council, and all the members of the Council present when such seal is affixed
shall sign the document, writing or other instrument to which such seal is affixed.
9 Regulations
Cabinet may make all such regulations that may in its opinion be necessary
or expedient for giving full effect to this Act and for the due administration of it.
10 Expenses of the Council
All payments made in the course of the administration of this Act shall be
made out of money which the Council receives in exercise of its functions from
fees and otherwise, and, to the extent that money is insufficient, shall be made out
of money appreciated by the Assembly for the purposes of the Council.
1338 Niue Laws 2006 Vol 3
1339
NIUE DEVELOPMENT BANK ACT 1993
1994/189 – 6 July 1994
PART 4
ACCOUNTS AND REPORTS
25 Financial year
26 Accounts and audit
27 Reports
PART 5
SECURITIES
28 Security for advances
29 Securities to be taken in name of Bank
30 Assignment of money as security may be
irrevocable
31 Alienation and assignment as security for
advances
32 Assignments of money from land vested
in trustees
33 Advances to be paid as Bank directs
34 Charging order may be made
35 Discharging of charging orders
36 Appointment of receiver to enforce
charges
37 Taxation
PART 6
MISCELLANEOUS
38 Contracts of Bank
39 Execution of documents
40 Evidence of documents
41 Penalty for misapplication of loan
42 False statements
43 Disclosure of information
44 Breach of Act or regulations
45 Rules
46 Regulations
47-49 [Spent]
To establish the Niue Development Bank
1 Short title
This is the Niue Development Bank Act 1993.
2 Interpretation
In this Act –
“Audit Office” means the auditor appointed under article 60 of the
Constitution;
1340 Niue Laws 2006 Vol 3
“Bank” means the Niue Development Bank;
“economic development” means development, in conformity with the
priorities of national development goals made by the Government
including development of –
(a) Tourism;
(b) Agriculture, livestock, forestry and fishing;
(c) Manufacturing and processing industries;
(d) Engineering, construction and transport;
(e) Commercial activities;
(f) Housing;
(g) Other areas;
“financial assistance” means any –
(a) Equity participation; or
(b) Loan; or
(c) Hire Purchasing; or
(d) Leasing;
“Minister” means the Minister of Finance;
“permanent Niuean resident” means any person who has been granted
permanent resident status under section 6 of the Entry Residence and
Departure Act 1985;
“recipient” means any Government corporate body, or person, or
organisation, to whom the bank provides financial assistance.
PART 1
ESTABLISHMENT AND ADMINISTRATION
3 Niue Development Bank
(1) There is hereby established a Bank called the Niue Development Bank.
(2) The Bank shall be a body corporate with perpetual succession and a
common seal and shall be capable of acquiring holding and disposing of real and
personal property, suing and being sued and subject to this Act, of doing and
suffering all such other acts and things as body corporates may lawfully do and
suffer.
4 Constitution of Board
(1) There shall be a Board of Directors of the Bank consisting of –
(a) The Financial Secretary or a person delegated by him in writing as
his alternate;
(b) Four persons from the private sector, of good character and standing,
who shall each have expertise in one or more different areas of the
Bank’s operation and who shall be appointed by Cabinet, but shall
not include any Ministers of the Crown or any members of the
Assembly.
(2) Cabinet shall appoint a Chairman who shall be one of the directors
referred to in subsection (1).
(3) The appointment of directors and Chairman shall be publicly notified
in such manner as Cabinet deems appropriate.
(4) The Board may elect one of their members to be Deputy Chairman.
(5) No person shall be deemed to be employed in the public service by
reason only of his being a member of the Board.
Niue Development Bank Act 1993
1341
5 Responsibilities of directors
(1) The Board of Directors shall be responsible to the Cabinet for the proper
and efficient operation of the Bank.
(2) Without limiting the generality of subsection (1), the responsibilities of
the Board of Directors shall include the responsibility to –
(a) Ensure that the functions of the Bank are carried out efficiently and
under proper banking standards;
(b) Maintain the independence and integrity of the Bank;
(c) Ensure that the Bank complies with this Act, the Bank’s policies
and any directions given to the Bank under section 10.
6 Term of office of directors
(1) Except as otherwise provided by this Act, every appointed director shall
hold office for a period of not less than one year and not more than 2 years
commencing on the date of his appointment provided that any director may be
reappointed for further terms.
(2) A member of the Board who is not an employee of the public service or
any ad-hoc body of the Government shall be paid from the funds of the Bank such
remuneration and allowances as Cabinet may determine.
(3) Notwithstanding any other provision in this Act every member whose
office is terminated by the effluxion of time shall continue to hold office until his
successor is appointed.
7 Extraordinary vacancies
(1) Any appointed director may at any time be removed from office by the
Minister with the concurrence of Cabinet –
(a) For disability, bankruptcy, neglect of duty or misconduct proved to
the satisfaction of the Minister with the concurrence of Cabinet; or
(b) If that director is absent from Niue for any period exceeding 2
months; or
(c) If the director is absent from 3 consecutive meetings of the Board
without leave of absence from the Board.
(2) An appointed director may at any time resign his office by delivering a
notice in writing to that effect to Cabinet.
(3) If any director dies or resigns, or is removed from office, his office shall
become vacant and the vacancy shall be deemed to be an extraordinary vacancy.
(4) An extraordinary vacancy shall be filled by the appointment of a person
in the same manner as the appointment of the vacating member.
(5) Every person appointed to fill an extraordinary vacancy shall be
appointed for the residue of the term for which the vacating member was
appointed.
(6) The powers of the Board shall not be affected by any vacancy in its
membership, provided that no business shall be transacted by the board if at any
time its total membership under clause 4 falls below 3 persons.
8 Meetings of the Board
(1) The first meeting of the Board shall be held on a day to be appointed by
the Minister.
(2) Subsequent meetings of the Board shall be held at intervals of not more
than every 6 weeks, at such times and places as the Board appoints.
(3) The Minister, or the Chairman or any 2 directors may at any time call a
special meeting of the Board.
1342 Niue Laws 2006 Vol 3
(4) Not less than 3 days notice of every meeting, together with the proposed agenda for that meeting shall be given in writing to every director present in Niue, unless all the directors of the time being in Niue unanimously agree that shorter notice may be given in respect of any particular meeting.
(5) At all meetings of the Board the quorum necessary for the transaction of business other than the adjournment of the meeting shall be not less than 3 members holding office.
(6) The Chairman shall preside at all meetings of the Board at which he is present.
(7) In the absence of the Chairman from any meeting, the Vice-Chairman shall preside, provided that if the Vice-Chairman is also absent, then the directors present shall appoint one of their number to be Chairman.
(8) At any meeting of the Board every director shall be entitled to one vote on any matter, provided that the Chairman or other person presiding shall in the case of equality of votes, also have a casting vote.
(9) Minutes shall be kept of every meeting of the Board. A resolution in writing signed or assented to by letter or facsimile, by all members of the Board shall be as valid and effectual as if it had been passed at a meeting of the Board duly called and constituted.
(10) Subject to this Act and of any regulations under it, the Board may regulate its procedures in such manner as it thinks fit.
(11) (a) No director shall vote or take part in the discussion of any matter before the Board or before the committee of it in which he has directly or indirectly a pecuniary interest apart from any interest in common with the public.
(b) Any director who knowingly offends against this subsection commits an offence and shall be liable on conviction to a fine not exceeding 10 penalty units.
9 Committees
(1) The Board may by resolution appoint, discharge, alter, continue or
reconstitute a committee or committees, consisting of 2 or more members, to advise
the Board on such matters as are referred to any committee by the Board.
(2) Any person may be appointed to be a member of any committee
appointed under this section notwithstanding that he is not a member of the Board.
(3) Subject to this Act, of any regulations, or of any general or special
directives of the Board, any such committee may regulate its procedure in such
manner as it thinks fit.
10 Directives by Cabinet
(1) Cabinet may give the Bank in writing such directives as Cabinet thinks
fit as to the policy to be followed by the Bank in the exercise of its functions or
powers, provided that no such directives shall be given in respect of specific loans
or loan applications.
(2) The Bank shall, in the exercise of its functions and powers, give effect
to any written directives given to it by the Cabinet under this section.
(3) A copy of every direction given by Cabinet to the bank under this section
in any financial year shall be included in the annual report of the Bank for that
year laid before the Assembly under section 27(1)(b).
Niue Development Bank Act 1993
1343
11 General Manager and other employees
(1) The Board shall employ at such remuneration and on such terms and
conditions as it may determine, a suitably qualified General Manager, who shall perform such duties as may be prescribed by the Board.
(2) The General Manager may be required to attend all Board meetings unless his presence at any meeting is excused by the Board or when any matter in which he is directly or indirectly privately interested is to be considered at such meeting.
(3) The Board may engage at such remuneration on such terms and
conditions and in such number as it may determine, other employees as may be
essential for the conduct of the business of the Bank.
(4) The Board may in writing delegate to the General Manager or other
employee of the Bank such of the powers or functions of the Board including the
power of delegation conferred by this section as it may think fit; provided that in
no case shall any power –
(i) to acquire land or buildings; or
(ii) to sell land or building vested in the Bank be delegated.
(5) Subject to any general or special direction given or conditions imposed
by the Board or person to whom any powers are delegated as aforesaid, any person
to whom any powers are delegated may exercise those powers in the same manner
and with the same effect as if they had been conferred directly by this Act and not
by delegation.
(6) Every person purporting to act under any delegation under this section
shall be presumed to be acting under the terms of the delegation in the absence of
proof to the contrary.
(7) Any delegation under this section may be made to a specified person
or to persons of a specified class or may be made to the holder for the time being
of a specified office or appointment or to the holders of offices or appointments of
a special class.
(8) Any delegation under this section may be revoked at any time.
(9) The delegation of any power by the Board or person shall not prevent
the exercise of that power by the Board or as the case may require, by that person.
(10) A copy of every delegation made under this section in any financial
year shall be included in the annual report of the bank for that year laid before the
Assembly under section 27(1)(b).
(11)Any person in the public service may be appointed to be an officer or
employee of the Bank but no such person shall be entitled to hold office
concurrently as an officer or employee of the Bank and as a public servant except –
(a) In the case of a person who is a member of the public service with
the consent of the Public Service Commission; and
(b) In any other case with the consent of the Minister of the Crown to
whose control he is subject.
(12)(a) Any person who was an officer of the public service and who is
employed by the Bank, may within 3 months after his appointment
as an officer or employee of the Bank, elect to resume employment
in the public service and, in any such case, notwithstanding the
provisions of any enactment to the contrary, his employment in the
public service shall be deemed to have continued without
interruption;
(b) This subsection shall not apply to any person whose employment
by the Bank is terminated for misconduct or neglect of duty.
1344 Niue Laws 2006 Vol 3
(c) No person shall be entitled to receive any salary as a member of the public service in respect of any period during which he was employed by the Bank.
12 Consultant and specialist personnel
Without limiting this Act, the board may with the approval of the Minister
with concurrence of Cabinet appoint consultants, advisers and such specialist
personnel as it thinks necessary or appropriate to assist the General Manager or
the Bank generally or specifically.
13 Personal liability
No member of the Board or employee of the Bank shall be personally liable
for any act or default done or made by the Board or by any director or employee
in good faith in the course of the operations of the Bank.
14 Authorised capital
(1) [Spent]
PART 2
CAPITAL
(2) The authorised capital of the Board may be increased to such amount as may be prescribed by Cabinet.
(3) The authorised capital of the Bank shall not be increased otherwise than under this section.
15 Subscription of shares
(1) The Bank shall not allot any of its unissued shares to any person other
than Her Majesty or a nominee holding the shares on behalf of Her Majesty.
(2) For the purposes of subsection (1) the Minister may hold and subscribe
for shares on behalf of Her Majesty and any statutory body in which the
Government holds a controlling interest or ad hoc of Government may be a
nominee of Her Majesty for the purpose of subscribing for and being allotted
shares on Her behalf.
(3) The shares of the Bank shall not be pledged or encumbered in any
manner whatsoever and shall not without the prior approval of Cabinet be
transferred or assigned and then, only on such terms and conditions as Cabinet
may impose.
(4) The liability of a shareholder shall be limited to the unpaid portion of
the par value of shares for which the shareholder subscribed.
PART 3
FUNCTIONS, POWERS AND FUNDS
16 Functions of the Bank
(1) The general functions of the Bank shall be –
(a) To provide finance for the establishment, development, extension
or assistance of industry and economic development in Niue;
(b) To encourage and promote investment in the economic
development of Niue;
(c) To provide finance for dwellings and improved housing and
improved living conditions in Niue;
(d) To provide technical assistance or advice and to generally foster
economic development in Niue.
Niue Development Bank Act 1993
1345
(2) Without limiting the generality of subsection (1), the Bank shall have the following functions –
(a) To provide financial assistance on such terms and conditions as the Board thinks fit, to permanent Niuean residents engaged or about to be or intending to be engaged in any economic development in Niue;
(b) To provide such advisory and technical services either with or without remuneration or fee as the Board considers desirable or expedient in the interest of the community and its economic development;
(c) To assist in obtaining and placing foreign investment on Niue for the purposes of economic development;
(d) To administer on such terms and conditions as may be approved by the board such special funds as may be placed at the disposal of the Bank;
(e) To study and promote onshore investment opportunities for the economic development in Niue;
(f) With the prior approval of Cabinet to acquire by lease or sublease
any land or buildings and to develop the same as a building estate
by the erection, construction, alteration, maintenance and
improvement of dwelling houses or flats, and gardens, recreation
parks and other works and buildings for or for the convenience of
persons occupying such dwelling houses or flats;
(g) To lease any land in the cause of housing and other urban
development, improvements and renewal; provided that the power
to sell land contained in here shall not extend to any land acquired
by the Government by warrant under section 8 of the Niue
Amendment Act 1968 No 2 and provided further that this provision
shall not be deemed to extend the powers of the Niue Development
Bank in respect of land beyond such powers as the Niue
Development Bank would have had prior to the passing of this
Act;
(h) To do all matters and things incidental to or connected with the
foregoing.
(3) The Board shall have such other functions as are conferred on it by this
Act or by any other enactment.
17 Powers of the Bank
(1) The Bank shall have all such powers, rights and authorities as may
reasonably be necessary or expedient to carry out its functions.
(2) Without limiting the generality of subsection (1) the Board shall have
the following specific powers –
(a) Sell, purchase or subscribe for shares, debentures, bonds or other
securities including securities which the Bank has issued or
guaranteed or make loans, with or without security, or acquire any
other interest;
(b) Finance the purchase, sale or hire of machinery, plant, equipment,
materials, goods and articles of every description by means of any
arrangement whatsoever, including but without limiting the
generality of the foregoing, the purchase and resale and hire of it
on such terms as the Board thinks fit; and
1346 Niue Laws 2006 Vol 3
(c) Execute, make, draw, accept, endorse, discount, issue and negotiate cheques, promissory notes, bills of exchange, bills of lading, bankers and other drafts, warrants, bonds, debentures, coupons and other negotiable or transferable instruments and buy, sell or otherwise deal in the same, and accept deposits of money;
(d) With the prior approval of Cabinet and upon terms and conditions
to be approved by Cabinet, borrow money required by it for the
purpose of meeting any of its obligations of discharging any of its
functions under this Act provided that the aggregate of the liabilities
of the Bank outstanding at any one time, including bonds and
debentures if any, issued by the Bank shall not exceed 3 times the
amount of its paid-up shares capital and reserves;
(e) Participate, in the discretion of the Board, in the management of
enterprises to whose finance it has contributed whether by loan or
otherwise;
(f) Organise, participate in, or act as agent for consortium arrangements
for the assistance of economic development in Niue;
(g) Act as agent for the government of international financial
institutions in the financing of economic development in Niue;
(h) Place funds not immediately required on deposit with any onshore
bank, or an overseas bank with Cabinet’s approval;
(i) Take such steps as may be necessary to protect or recover its financial
interest in any business;
(j) To accept gifts of leases or subleases of any land, money or other
property;
(k) To subdivide or develop any land acquired by or vested in it;
(l) Subject to the provisions of any enactment applicable to the bank,
to fix, regulate or make such charges as may be determined from
time to time for the use of any dwelling house, flat, building or
other facility provided, maintained, controlled or operated by the
bank;
(m) To make advances under this Act;
(n) To negotiate and enter into arrangements with and between
landowners and householders, and assist by advice and otherwise
the development of private housing conditions;
(o) To contract for the execution or provision by any person of any
work or services authorised by this or any other enactment to be
executed or provided by the Board in such manner and subject to
such terms and conditions as the Board thinks fit;
(p) Make such charges for the provision of its service as the Bank thinks
fit.
18 Operating principles
(1) In determining whether or not any financial assistance shall be given
to any enterprise, the Board shall properly evaluate each proposal and consider – (a) The prospects of the enterprises being or becoming and remaining financially viable and the prospects of any money lent to it by the
Bank being repaid to the Bank;
(b) The degree to which the enterprise is or will become or remain of
value to the economy of Niue;
(c) The degree to which persons ordinarily resident in Niue will derive
a direct benefit from the enterprise;
(d) Any policy directives given to it by Cabinet.
Niue Development Bank Act 1993
1347
(2) No financial assistance shall be given in respect of any project, or for housing purposes unless the Board is satisfied –
(a) That the project or recipient has the financial ability and resources to meet all repayments and other obligations imposed by the Bank; or
(b) That the recipient is a permanent Niuean resident or an organisation
in which the majority shareholder or principal partner or owner is
a permanent Niuean resident.
19 Vesting of property in Bank
(1) Her Majesty may in accordance with section 8 of the Niue Amendment
(No 2) Act 1968 grant in respect of the Crown land, any lease, licence, easement or
other limited estate, right or interest to the Bank or in the name of the Bank property,
rights or privileges, vested in or held on behalf of the Crown and used or
administered or to be used or administered for the purposes of or in connection
with any housing or industrial projects or town planning schemes subject to any
leases, rights, easements and interests subsisting in respect of the land or property
at the date of the grant, transfer or assignment.
(2) Any lease by the Crown under subsection (1) may be for such term and
provide for such rent and other conditions as the Bank with the prior written
approval of the Minister shall accept or approve.
20 Funds
(1) The funds of the Bank shall consist of –
(a) Such sums of money as may be received by the Bank under section
15;
(b) Such sums of money as the Bank may acquire by virtue or grants or
raised by way of loan;
(c) Such sums of money as may be appropriated for it by the Assembly;
and
(d) Such other sums of money as may accrue to it in the course and on
account of its business.
(2) Any special funds shall be kept separate from the other funds specified
in subsection (1).
(3) No charge or lien created on any special fund shall operate as a charge
or lien upon the funds of the Bank, provided that –
(a) Where in any Appropriation Act or in any estimate of expenditure
and revenue accompanying the Appropriation Act for any year any
vote or item to which the section applies is noted as being for a
specified purpose, it shall not be competent for the Bank to use
moneys so appropriated for any purpose other than that specified
in such Act or estimate; and,
(b) Where any appropriation is made for the purposes of the Board,
the Cabinet may direct the manner in which the moneys
appropriated shall be paid to the Board and may require that any
such appropriation be used first in payment of any debt due to the
Public Account or to any account within the Public Account.
1348 Niue Laws 2006 Vol 3
21 Application of funds
The funds of the Bank shall be applied towards –
(a) The payment of salaries and fees due to employees of the Bank;
(b) The repayment of sums raised by way of loan by the bank and the
payment of interest on it;
(c) Providing financial assistance under this Act;
(d) The payment of rates, taxes, insurance premiums and other
outgoings;
(e) The payment of such dividends as the Board may authorise; and
(f) All other payments necessary for or incidental to the business of
the Bank authorised under this Act.
22 Principles and limits on financing and operations
(1) The Bank may alone or in conjunction with other domestic or foreign
investors, provide or participate in providing financial assistance in aid of
development investment in Niue.
(2) In providing financial assistance the Bank shall –
(a) Maintain a reasonable diversification in its investments among all
sectors of economic activity in Niue;
(b) Maintain a satisfactory balance between the dates of maturity or its
own obligations and those of the loans it grants; and
(c) As principal objective, operate as a successful business, as profitably
and efficiently as comparable businesses in the private sector.
(3) The Bank’s financial assistance shall in the cases of a single recipient or
several recipients who are associated with each other in a community of material
financial interest, not exceed 20 per centum of the Bank’s paid-up shares, capital
and reserves.
(4) In the case of funds invested by the Bank in equity participation –
(a) The aggregate of the amounts so invested shall not exceed 20 per
centum of the aggregate of the Bank’s paid-up share capital;
(b) The Bank shall limit such participation, in any recipient or recipients
associated with each other in a community of material financial
interest, to a maximum of 10 per centum of the Bank’s paid up
capital of such recipient; and
(c) The Bank shall seek to rotate its funds by selling such participations
to other investors wherever it can do so on satisfactory terms.
23 Short-term investment
The Bank may invest all or any part of its funds not immediately required
for the purpose stated in this Act in good and sound investment, to be approved
by Cabinet.
24 Reserve Fund and allocation of net profit
(1) The Bank shall provide against any anticipated losses by establishing
and maintaining a reserve fund to which shall be allocated at the end of each
financial year of the Bank –
(a) Not less than 50 per centum of the net profit of the Bank of that
year until the total sum standing to the credit of such reserve fund
shall amount to a sum equal to the paid-up share capital of the
Bank;
Niue Development Bank Act 1993
1349
(b) Not less than 10 per centum of the net profit of the Bank of that year if the total sum standing to the credit of such reserve fund exceeds a sum equal to the paid-up share capital of the Bank.
(2) The Board shall determine annually on the allocation of the net profit of the Bank after providing for the Reserve Fund.
25 Financial Year
PART 4
ACCOUNTS AND REPORTS
The financial year of the Bank shall be the period of 12 months ending on
30 June in each year.
26 Accounts and audit
(1) The Board shall cause true and full accounts and records to be kept of
all the transactions with which the Bank is concerned, and the books of account
and records shall be kept at the principal place of business of the Bank.
(2) The accounts shall be subject to annual audit by the Government’s
official Audit Office or their duly authorised representatives.
27 Reports
(1) The Board shall –
(a) Provide to the Minister a quarterly report containing such financial
and other information as the Minister may require regarding the
operation of the Bank; and
(b) Not later than 3 months after the end of each financial year, submit
to the Cabinet a report of its operations, including the annual
statement of its accounts for that year, and shall forward a copy of
such report and annual statement to the Audit Office;
(c) Submit to Cabinet an audited annual statement of accounts.
(2) Without limiting the content of the annual report required to be made
under subsection (1) under (b) such report shall include the following information –
(a) The objectives and policies of the Bank;
(b) The nature and scope of activities being undertaken or to be
undertaken;
(c) The ratio of capital to total assets, and definitions of those terms as
used in the report;
(d) The accounting policies used in relation to the annual statement
included in the report.
(3) Every audited report and annual report submitted to Cabinet under
subsection (1)(b) and (c) shall forthwith be laid before the Assembly for debate if
the Assembly is then in session, or, if the Assembly is not then in session, within
24 hours of the commencement of the next ensuing session.
28 Security for advances
PART 5
SECURITIES
(1) Advances made by the Bank shall be secured in such manner and on such terms as the Bank thinks fit.
(2) For the purposes of determining whether an application for an advance should be granted, the Bank shall not be bound to insist upon any fixed or definite margin of security.
1350 Niue Laws 2006 Vol 3
29 Securities to be taken in name of Bank
Every security for an advance shall be taken in the name of the Bank.
30 Assignment of money as security may be irrevocable
(1) The Bank may require any order on or assignment of money given as
security for the repayment of any advance to be expressed to be irrevocable,
notwithstanding the death of the person giving the order or assignment, and the
order or assignment shall be irrevocable accordingly except with the consent in
writing of the Bank.
(2) Notwithstanding anything in any enactment to the contrary, any
company, corporate body, or person upon whom any notice of any such order or
assignment has been served, shall be bound to accept and to act upon the order or
assignment and to pay to the person nominated in that behalf in the order or
assignment all money payable under it.
31 Alienation and assignment as security for advances
(1) Notwithstanding anything in Part 19 of the Niue Act 1966, or in section
24 of the Niue Amendment Act (No 2) 1968, it shall be competent for any Niuean
or descent of a Niuean to alienate any Niuean freehold land or things growing on
or attached to any such land of the rents and profits from any such land as security
for any advance made by the Bank for any housing or other purpose.
(2) Notwithstanding anything in the Property Law Act 1952 no power of
sale shall be contained or implied in any charge given on any interest in land (not
being leasehold interest) to secure the repayment of any advance made by the
Bank for any housing or other purpose.
32 Assignments of money from land vested in trustees
(1) For the purpose of securing the repayment of any advance made by
the Bank for any housing or other purpose, it shall be competent for any Niuean
or descendant of a Niuean to give an order on or an assignment of the proceeds of
the alienation of any land (including compensation money for land taken) whether
the land is vested in a trustee or not.
(2) Any such order or assignment shall be valid and enforceable for all
purposes notwithstanding any other enactment.
33 Advances to be paid as Bank directs
Every advance shall be expended or applied by the Bank, or at its discretion,
for any one or more purposes for the benefit or on behalf of the applicant and,
unless the Bank otherwise determines, shall not be paid direct to the applicant.
34 Charging order may be made
(1) Notwithstanding anything in the Niue Act 1966, or in any other
enactment where a charge on any interest in land has been given as security for
the repayment of any advance, the Court, on proof to its satisfaction that the
advance has been approved by the Bank, and in anticipation of the advance being
made, may make an order changing the land or any interest in it or any part of it
or any undivided or partial interest in it with repayment of the amount advanced
or to be advanced, together with all interest and other monies which may become
payable thereunder and by such instalments and with such directions for giving
effect to the charge as the Court thinks expedient.
Niue Development Bank Act 1993
1351
(2) The certificate of the Bank shall for all purposes be prima facie proof of the amount of the advance and of the rate of interest payable, and may be accepted by the Court accordingly.
(3) (a) The Court may make a further order varying any former order in respect of any additional advance or by way of apportioning charges in such manner as it thinks expedient or for any other purpose it thinks fit, and every subsequent order shall supersede all prior charging orders so far as it is inconsistent with it.
(b) Where any charge is apportioned, each portion shall be deemed to
be a separate charge.
(4) Every order made under this section shall be registered or recorded, as
the case may require, in such manner as the Court directs.
35 Discharging of charging orders
The Court may at any time, on the application of the Bank wholly or partially
discharge any charging order made under section 34, whether or not the money
secured by the charge has been repaid.
36 Appointment of receiver to enforce charges
(1) When by section 34 any charging order has been made in respect of
any land or any interest or upon the revenues in it or the proceeds of the alienation
of it, the Court may, for the purpose of enforcing that charge, appoint a receiver in
respect of the property so charged.
(2) A receiver appointed under this section shall have all such rights,
powers, duties and liabilities as may be expressly conferred or imposed on him
by the Court and such other incidental powers as may be reasonably necessary
for the exercise of the powers so conferred provided that a receiver appointed
under this section shall not have power to sell the freehold interest in any Niuean
land, or to lease any such land otherwise than as provided in subsection (3).
(3) Notwithstanding any of the provisions of the Niue Act 1966 as to the
alienation of Niuean land, a receiver appointed under this section for the purpose
of enforcing a charge may, in his own name and with the leave of the Court, grant
leases of any land so charged for any term not exceeding 21 years, on such
conditions and for such rent or other consideration as he thinks fit.
37 Taxation
PART 6
MISCELLANEOUS
The income and revenue of the Bank shall not be subject to taxation.
38 Contracts of Bank
(1) Any contract which, if made between private persons must be by deed
shall, if made by the Bank, be in writing under the common seal of the Bank.
(2) Any contract which, if made between private persons, must be in
writing signed by the parties to be charged therewith shall, if made by the Bank
be under the common seal of the Bank.
(3) Any contract which, if made between private persons, may be made
orally may be similarly made by or on behalf of the Bank by any person acting
under its authority, express or implied.
1352 Niue Laws 2006 Vol 3
39 Execution of documents
(1) Every document to which the common seal of the Bank is affixed shall
be signed by the Chairman or in his absence the Vice-Chairman, and shall be
countersigned by either the General Manager of the Bank, or in his absence from
Niue, any other director.
(2) Any document which, if executed by a private person, would not require
to be executed as a deed may be signed on behalf of the Bank by the Chairman or
by the General Manager of the Bank.
(3) No document to which the common seal is required to be affixed, and
no contract to which the Bank is a party shall be executed except under a resolution
of the directors.
40 Evidence of documents
Every document purporting to be a document executed by or on behalf of
the Bank in a manner provided in section 39 shall be received in evidence and be
deemed to be so executed in the absence of proof to the contrary.
41 Penalty for misapplication of loan
Any person who knowingly applies any loan or part of it made under this
Act to any purpose other than that authorised by the Bank shall be guilty of an
offence and on conviction shall be liable to a fine not exceeding 10 penalty units or
to imprisonment for a term not exceeding 12 months or to both such fine and
imprisonment.
42 False statements
Any applicant for assistance from the Bank by way of loan or otherwise
who wilfully fails to disclose any material information within his knowledge, or
who wilfully makes any statement which he knows to be false or does not believe
to be true shall be guilty of an offence and on conviction shall be liable to a fine not
exceeding 5 penalty units or to imprisonment for a term not exceeding 6 months,
or to both such fine and imprisonment.
43 Disclosure of information
Any Board member or employee of the Bank who directly or indirectly
discloses, or for private purpose uses, any information acquired by him either in
the course of his duties or his capacity as an employee of the Bank shall be guilty
of an offence and on conviction shall be liable to a fine not exceeding 5 penalty
units or to imprisonment for a term not exceeding 6 months or to both such fine
and imprisonment.
44 Breach of Act or regulations
Every person who commits or attempts to commit or is concerned in
committing or attempting to commit a breach or violation of this Act or of any
regulations made under this Act for which no special penalty is provided is liable
for every offence to a fine not exceeding 5 penalty units.
45 Rules
The Board may make such rules, consistent with this Act, as it considers
necessary or appropriate to facilitate and control its operations, and further the
objects and functions of the Bank.
Niue Development Bank Act 1993 1353
46 Regulations
Cabinet may by publication in the Gazette after consideration of any recommendations thereon made to it by the Bank through the Minister, make all such regulations as may be necessary or expedient for giving full effect to this Act and for the due administration of it.
47-49 [Spent]
1354 Niue Laws 2006 Vol 3
1355
NIUE DEVELOPMENT BONDS ACT 1994
1994/181 – 28 March 1994
|
PART 1 PRELIMINARY |
5 |
[Repealed] | |
|
1 |
Short title |
6 |
Prospectus |
|
2 |
Interpretation |
7 |
Non-resident withholding tax |
|
8 |
Part of Income Tax Act | ||
|
PART 2 |
9 |
Jurisdiction | |
|
NIUE DEVELOPMENT BONDS |
10 |
Secrecy | |
|
3 |
Power to issue Bonds | ||
|
4 |
Terms of issue |
SCHEDULES |
To enable the Niue Bank to borrow money for development purposes by issuing Niue Development Bonds
1 Short title
PART 1
PRELIMINARY
This is the Niue Development Bonds Act 1994.
2 Interpretation
In this Act –
“applicant” means any eligible person making an application for a Bond;
“Bank” means the Niue Bank;
“Bond” means a Niue Development Bond issued under this Act;
“bond certificate” means a bond certificate in the form specified in Schedule
3 issued by the Bank;
“bondholder” means a holder in due course of a Niue Development Bond;
“date of commencement” means the date of receipt by the Bank of an
application plus any payment required by clause 3(4) of Schedule 1;
“date of repayment” means the date on which the Bank is required to make
available the amount of the Bond and any interest required to be paid
under clause 6 of Schedule 1;
“maturity” means the date on which a Bond becomes repayable;
“memorandum of transfer” means a memorandum of transfer inthe form
specified in Schedule 4;
“Minister” means the Minister of Finance;
“non-resident” means a non-resident for the purposes of the Income Tax
Act 1961;
“Register” means the register of Bondholders kept by the Bank under this
Act;
“special terms” means those additional terms of issue approved by Cabinet
in accordance with clause 10 of Schedule 1;
“Treasurer” means the Treasurer as defined in the Income Tax Act 1961.
1356 Niue Laws 2006 Vol 3
PART 2
NIUE DEVELOPMENT BONDS
3 Power to issue Bonds
(1) Notwithstanding any other provision of this Act or any rule of law, the
Bank may, with the approval of Cabinet, issue negotiable fixed or floating rate
coupon bonds if it appears to the Bank to be necessary or expedient in the public
interest to do so.
(2) Any Bonds issued under this Act shall be termed “Niue Development
Bonds”.
4 Terms of issue
(1) The Bonds shall be issued by the Bank under the terms and conditions
of issue specified in Schedule 1 (which shall include any Special Terms approved
by Cabinet in accordance with clause 10 of Schedule 1) as may be amended,
provided that no amendment shall affect the terms of issue of any Bond on issue
at that time until the Bank is renewed.
(2) The Bank shall have the right to amend the terms and conditions of
issue upon written notification to Bondholders of any amendments to the terms
and conditions of issue.
(3) If the Bank notifies existing bondholders of amendments to the terms
and conditions of issue not less than one month prior to the date of repayment,
the amended terms and conditions of issue shall apply for any renewed term
commencing from the date of repayment.
(4) If the Bank fails to notify any amendments to the terms and conditions
of issue within the period specified in subsection (3), the existing terms and
conditions of issue shall apply for any renewed term commencing from the date
of repayment.
5 [Repealed]
6 Prospectus
(1) The Bank shall prior to any issue of Bonds offer them for subscription
by way of registered prospectus.
(2) The prospectus shall be registered with the Minister.
(3) The prospectus shall include the terms and conditions of issue specified
in Schedule 1 (which shall include any Special Terms approved by Cabinet under
clause 10 of Schedule 1).
7 Non-resident withholding tax
(1) Every Non-Resident Bondholder who derives interest on a bond shall
be liable to non-resident withholding tax upon that interest at the domestic tax
rate for resident companies on the gross amount of interest.
(2) Where the Bank makes an interest payment to a Bondholder under this
Act, it shall, at the time of making the payment, make a deduction of non-resident
withholding tax therefrom at the rate referred to in subsection (1).
(3) The Bank, upon making a deduction of non-resident withholding tax,
shall not later than the 20th day of the month next after the month in which the
Bank has made any such deduction, pay to the Treasurer the amount of the
deduction.
(4) The Bank shall not later than the 20th day of the month next after the
month in which the Bank has made a deduction under subsection (2), deliver to
the Treasurer a statement specifying the gross interest payable to the non-resident
Bondholder and any deductions made from it.
Niue Development Bonds Act 1994
1357
(5) The interest payable to the non-resident Bondholder by the Bank shall not be included in the return of assessable income of the non-resident Bondholder and the amount of income tax for which the non-resident Bondholder is liable in respect of the amount of the interest derived by the Bondholder in any income year shall be determined exclusively and finally by the total amount of Non- Resident withholding tax for which the Bondholder is liable by virtue of subsection (1).
8 Part of Income Tax
(1) [Spent]
(2) The non-resident withholding tax imposed by section 7 shall be deemed
to be a tax on assessable income for the purposes of the Income Tax Act 1961.
9 Jurisdiction
The law of Niue shall apply unless expressly excluded by this Act.
10 Secrecy
(1) Except where the provisions of this Act require, it shall be an offence
for any person to divulge or communicate to any other person information relating
to the establishment, constitution, business, undertaking or affairs of an applicant
or Bondholder.
(2) An offence proved to have been committed under this section shall be
liable upon conviction to imprisonment for a term not exceeding 1 year, or to a
fine not exceeding 100 penalty units, or both.
(3) Notwithstanding subsection (1), an offence shall not be committed
where information is divulged or made available to the extent reasonably required
in the circumstances to any foreign Government or any court or tribunal of any
country including Niue but only if and to the extent that the Court so directs,
having been satisfied that the information is required and will be used solely for
the purposes of an investigation or prosecution of any person in relation to the
sale, or the laundering of the proceeds of sale, of any prohibited narcotic substances
or the laundering of the proceeds gained from any other serious criminal activity,
whether that sale or laundering or other serious criminal activity occurred in Niue
or elsewhere.
(4) Nothing in this section shall prevent the Court from requiring any
person to produce documents or to give evidence in any proceedings of any facts
relevant in such proceedings in a court in Niue.
––––––––––––––––––––––
1358 Niue Laws 2006 Vol 3
SCHEDULES SCHEDULE 1
TERMS AND CONDITIONS OF ISSUE
1 Eligibility
(1) Bonds issued under this Act may be held by –
(a) An individual;
(b) Two or more persons as joint tenants;
(c) Any limited liability company;
(d) Any partnership, special partnership or limited liability partnership;
(e) Any trust or trustee; and
(f) Any other corporate entity.
(2) If at any time a Bondholder is not eligible to hold a Bond the Bank reserves
the right to repay any Bonds issued under this Act.
2 Niue Development Bonds
(1) The Bank may issue Bonds in multiples of NZ$500,000 or in such other
multiples as Cabinet may approve.
(2) The Bonds will be issued at par.
3 Applications
(1) Any person eligible to hold a Bond may make an application to the Bank in
the form specified in Schedule 2.
(2) The Minister may impose a limit upon the value of Bonds that a Bondholder
may hold.
(3) Applications lodged after 3pm at any receiving office of the Bank shall be
deemed to have been received on the first working day following the date of lodgement.
(4) Applications must be accompanied by the full issue price and must be received
prior to the designated Closing Date (“the Closing Date”).
(5) The Bank reserves the right to decline any application or applications and to
close any or all maturities of Bonds issued pursuant to this Act.
(6) All amounts received prior to the Closing Date will be banked into the
Government of Niue’s Consolidated Account for the Applicant’s account until the
application is accepted at which time they will be held on the Government of Niue’s
account.
(7) Upon acceptance by the Bank of an application the Bank shall issue a Bond
Certificate to the Bondholder in the form specified in Schedule 3.
(8) In the event the Issue is over-subscribed the Minister, whose decision shall in
all respects be final, will direct the Niue Bank to allocate the Bonds amongst applicants in
order of magnitude of subscription amount, after which any unallocated subscriptions
will be returned to the applicant, together with interest on it.
4 Registration
(1) The Bank shall keep a Register of all Bonds issued under this Act.
(2) The Register may be kept in book form, or in the form of a paper or card
record, or by computer or any device by means of which information is recorded or stored.
If the Register is kept by computer or any such device –
(a) The recording or storing of any information in it shall be deemed to be
the entry of it in the Register; and
(b) Any material subsequently derived from information so recorded or stored
shall be deemed to be an extract from the Register.
Niue Development Bonds Act 1994
1359
(3) The Bank shall cause to be entered in the Register the following particulars of every Bondholder –
(a) The name and address of the Bondholder;
(b) The amount of Bonds held by the Bondholder;
(c) The rate of interest payable in respect of the Bond;
(d) The date or dates on which the interest is payable;
(e) The due date of repayment of the Bond;
(f) Such other particulars as may be required by the Bank.
(4) Any extract from the Register, certified as correct by an officer of the Bank
purporting to act in the course of his duties as such shall, in the absence of evidence to the
contrary, for all purposes and in all courts, be sufficient evidence of the entry in the Register
to which the extract relates as on the date when the extract was so certified. Any such
certificate purporting to have been signed by such an officer shall, in the absence of proof
to the contrary, be deemed for all purposes to have been duly signed by such an officer.
(5) The Bank may, on such evidence as appears to it to be sufficient, correct errors
and remedy omissions in the Register or any entry in it or in Bond Certificates, and may
call in any outstanding bond certificate for that purpose.
(6) Where 2 or more persons are registered as the Bondholders of the same Bond
by virtue of any application, memorandum of transfer, or other instrument, then, unless
the contrary is expressed in the application, memorandum of transfer, or other instrument,
the persons shall be deemed to hold the stock as joint tenants with right of survivorship.
(7) On application by any Bondholder, the Bank shall issue to the applicant a
bond certificate certifying that the applicant is the registered Bondholder referred to therein
(being the whole or any part of the amount of the Bond of which the Bondholder is the
registered holder).
(8) Any bond certificate shall be conclusive evidence of the ownership of the
Bond to which it relates by the person named therein as the Bondholder. The Register
shall be maintained confidential by the Bank, such that only a registered Bondholder
may have access to the Register for the purposes of confirming its position as Bondholder.
(9) Subject to clause 7 the transfer, whether by delivery or otherwise, of any such
Bond Certificate shall not operate as a transfer of the legal or equitable interest of the
Bondholder to which it relates. The Bank shall not repay nor record any dealing with any
Bond for which a bond certificate has been issued, unless the bond certificate has been
produced to and cancelled by the Bank.
(10) The Bank shall enter in the Register particulars of the issue of every bond
certificate.
(11) Where any bond certificate has been lost, destroyed, mutilated or rendered
illegible, the Bank, on receiving evidence to its satisfaction of the loss or destruction or, as
the case may be, on the surrender of the mutilated or illegible bond certificate, may, on
such terms and subject to such conditions as the Bank prescribes, issue a substitute bond
certificate with the word “substitute” stamped or written on it, and shall record the issue
of it in the Register.
(12) Every such substitute bond certificate shall have the same effect to all intents
and purposes as the original bond certificate for which it is substituted.
5 Term
Bonds shall be issued for a term of one or more years from the date of
commencement and, if approved by Cabinet, may be subject to a right of renewal for a further period of one or more years.
1360 Niue Laws 2006 Vol 3
made 3 calendar months from the date of commencement and subsequent interest payments to be made at 3 calendar monthly intervals thereafter until maturity.
(4) Interest will be credited without apportionment to the Bondholder ’s nominated account at any registered bank or other financial institution in Niue or New Zealand or any other country.
7 Transferability
(1) Each Bond issued will be a negotiable transferable certificate of deposit. A
Bondholder may, by memorandum of transfer in the form specified in Schedule 4, transfer
the total amount of Bonds held or any part of it to another eligible party.
(2) On production of a duly executed memorandum of transfer, the Bank shall
enter in the Register the name of the transferee as the registered Bondholder of the Bond
to which the memorandum of transfer relates.
(3) Every such entry shall operate as a transfer of the Bonds to which it relates,
and shall vest those Bonds in the transferee.
(4) The Register will close for registration of transfers 10 days prior to each
quarterly interest date.
8 Bonds as security
Bonds may be mortgaged, charged, or pledged by the Bondholder.
9 Repayment
(1) Subject to clause 5(2), Bonds will be repaid on the date of repayment.
(2) At the date of repayment, Bondholders will receive the par value of the Bond
plus interest on it for 3 calendar month interval preceding the date of repayment.
(3) Repayment shall be made in the method specified for the payment of interest
in clause 6(4).
10 Special Terms
Bonds may be issued on such other additional terms as Cabinet may approve.
––––––––––––––––––––
Niue Development Bonds Act 1994
SCHEDULE 2
APPLICATION FORM
“Application for Niue Development Bonds”
1361
|
To |
Niue Bank [Address] | |
|
A |
Investor Details | |
|
1 |
Surname (or Company name): |
First name(s) |
|
2 |
Address |
(or registered office including contact person)
3 Telephone numbers
Business:
Facsimile:
4 Niue Tax Number
(Note: This will be allocated automatically upon acceptance of the application if the
applicant does not hold a Niue tax number).
I/We/The Company hereby apply(ies) for Niue Development Bonds upon the terms and conditions set out in the Prospectus dated [Prospectus Date].
B Investment Details
1 No. of Bonds applied for:
2 Interest Rate: [Interest Rate]% (Interest rate effective from [Prospectus Date]).
Notes: Multiples of NZ$500,000 (or such other multiples as may be approved
by Cabinet).
Interest paid quarterly
Special terms of issue
C Payment Authority
1 Name of Bank Account:
2 Country:
3 Bank:
4 Bank Account No:
I/We/The Company hereby authorise(s) the Niue Bank to pay to the above bank account all interest and redemption proceeds which hereafter may become payable in respect of Niue Development Bonds for which the Niue Bank acts as Registrar and to accept their receipt as a full and final discharge, such order to remain in force until revoked by me/ us/the Company in writing.
Signature (signed on behalf of [The Company])
Date:
––––––––––––––––––––
1362 Niue Laws 2006 Vol 3
SCHEDULE 3
Form of Bond Certificate
Niue Bank
(being duly established under the Niue Bank Act 1994)
Certificate No.
“Certificate for Niue Development Bonds” Niue Bank
Treasury Department, Alofi, Niue
Niue Development Bonds (hereinafter called “Development Bonds”) constituted by this
Certificate are issued pursuant to the Niue Development Bonds Act 1994.
Name and Address of Bondholder: This is to certify that:
1 The Bondholder named in the above table is the registered holder of the principal
amount of registered Development Bonds of $500,000 [or such other multiples as
Cabinet may approve from time to time] principal amount which is set out in the table
below.
2 The Development Bonds comprised in this certificate bear interest at the interest rate
set out in the table below and are redeemable at par on the date of maturity set out in
the table below.
3 Interest on the development Bonds comprised in this certificate is payable on the Interest
Payment Dates set out in the table below and on the Date of Maturity.
NUMBER OF DEVELOPMENT BONDS: (in words and figures) INTEREST RATE:
INTEREST PAYMENT DATES:
DATE OF MATURITY:
COMMENCEMENT DATE:
SPECIAL TERMS:
CERTIFIED on behalf of the Niue Bank by:
The Minister of Finance for Niue
Director of Niue Bank (appointed pursuant
to section 23(2)(b) of the Niue Bank Act 1994)
NOTES
1 This certificate must be surrendered before any transfer of the whole or any number of
the Development Bonds comprised therein can be registered and no other than a
multiple of NZ$500,000 [or such other multiples as Cabinet may approve from time to
time] principal amount of Development Bonds may be transferred.
2 This certificate must be surrendered before redemption of the principal sum of the
Development Bonds comprised herein.
3 A copy of the terms and conditions of issue can be requested from the Niue Bank at
any time.
––––––––––––––––––––
Niue Development Bonds Act 1994
SCHEDULE 4
Memorandum of Transfer
Niue Bank
1363
“Memorandum of Transfer of Niue Development Bonds”(For use in respect of the transfer of registered Niue Development Bonds)
PART 1
Particulars
Number of Development Bonds (in words and figures) Certificate No.
Interest Rate:
Date of Maturity:
Particulars of Registered Holder(s):
|
Surname(s) |
(First name(s)) |
Address |
|
(or Company Name) |
(or Registered Office) |
I/We/The Company hereby transfer(s) the Development Bonds described above to the person/s/ company named below.
Signatures of Registered Holder(s) (or on behalf of Company): PART 2
Particulars of Transferee(s) of Development Bonds
Consideration
Transferee(s)
Surname(s) (First name(s)) Address
(or Company Name) (or Registered Office)
Tax No (if exempt from withholding tax please attach exemption certificates):
I/We/The Company confirm(s) that the Development Bond(s) described above has (have)
been acquired on the terms and conditions pursuant to the Niue Development Bonds Act
1994 and I/We/the Company request(s) that such entries be made in the register as are
necessary to give effect to this transfer.
PAYMENT AUTHORITY
I/We/The Company hereby authorise the Niue Bank to pay to the bank account below all interest and redemption proceeds which hereafter may become payable in respect of Niue Bonds of which the Niue Bank acts as Registrar and to accept their receipt as a full and sufficient discharge, such order to remain in force until revoked by me/us/the Company in writing.
1364 Niue Laws 2006 Vol 3
Name of Bank Account: Country:
Bank:
Bank Account No:
Signatures of Transferee(s) (or on behalf of the Company); Date:
1365
NIUE FLAG ACT 1975
1975/16 – 1975
|
1 |
Short title |
4 |
Offences | |
|
2 |
Niue Flag | |||
|
3 |
Regulations |
SCHEDULE |
To provide for the establishment and use of a Niue Flag
1 Short title
This is the Niue Flag Act 1975.
2 Niue Flag
(1) The Niue Flag shall be the flag described in the Schedule.
(2) The Niue Flag is hereby declared to be the recognised flag of Niue.
(3) Any other flag hitherto prescribed or used as the recognised flag of
Niue is hereby declared to be disestablished in Niue.
3 Regulations
Cabinet may make regulations prescribing the circumstances in which and
the conditions subject to which the Niue Flag may be flown.
4 Offences
Every person who defaces the Niue Flag by placing any sign, representation,
or letter thereon commits an offence, and is liable to a fine not exceeding 5 penalty
units or a term of imprisonment not exceeding 6 months.
–––––––––––––––––––––
SCHEDULE THE NIUE FLAG
The Niue Flag shall be described as follows:
“The Niue National Flag shall be a golden yellow flag, bearing on the upper canton
of the hoist thereof the Union Flag, commonly known as the Union Jack,
displaying 2 five-pointed yellow stars on the vertical line and on the horizontal
line thereof separated by a blue disc containing a larger five-pointed yellow
star.”
AND IT SHALL MEAN:
Golden yellow represents the bright sunshine of Niue and the warm feelings of
the Niuean people towards New Zealand and her people.
1366 Niue Laws 2006 Vol 3
The Union Flag, commonly known as the Union Jack represents that Niue was a British Protectorate, proclaimed on 19 October 1900 after petitioning by the Kings and Chiefs of Niue to Great Britain for the Union Flag to be flown in Niue as the symbol of protection.
The four small stars represent the Southern Cross and New Zealand under whose administration Niue was placed by Great Britain in 1901 and as well reflecting the continuing close relationship between Niue and New Zealand.
The larger star within the blue disc represents the self-governing status of Niue, standing alone within the deep blue sea.
1367
NIUE PHILATELIC AND NUMISMATIC ACT 1996
1996/206 – 16 May 1996
|
1 |
PART 1 PRELIMINARY Short title |
15 |
PART 3 PERSONNEL Company employees |
|
2 |
Interpretation |
16 |
Application of the Niue Public Service |
|
3 |
Application |
terms and conditions | |
|
4 |
General objectives of the Act |
PART 4 | |
|
PART 2 |
FINANCIAL PROVISIONS | ||
|
THE NIUE PHILATELIC AND NUMISMATIC COMPANY 17 Annual estimates | |||
|
5 |
The Company established |
18 |
Accounts and records |
|
6 |
Functions and powers of the Company |
19 |
[Repealed] |
|
7 |
Government policy |
20 |
Annual report |
|
8 |
Board of Directors |
21 |
Taxation |
|
9 |
Chairperson |
22 |
Dividends |
|
10 |
Disclosure of interest | ||
|
11 |
Directors not personally liable |
PART 5 | |
|
12 |
Contracts by the Company |
MISCELLANEOUS | |
|
13 |
Committees |
23 |
Regulations |
|
14 |
Delegation of powers |
To establish the Niue Philatelic and Numismatic Company for the purpose of conducting Philatelic and Numismatic business
1 Short title
This is the Philatelic and Numismatic Act 1996.
2 Interpretation
In this Act –
“Board” means the Board of Directors appointed under this Act;
“Company” means the Niue Philatelic and Numismatic Company;
“Minister” means the Minister of Finance;
“numismatic” means matters dealing with or concerning coins or coinage.
“other revenue earning options” means options approved by Cabinet, that
may earn Niue revenue;
“philatelic” means matters dealing with or concerning stamps;
“regulations” means regulations made under section 23;
“services” in addition to philatelic and numismatic, includes any other
service carried out by the Company under this Act.
1368 Niue Laws 2006 Vol 3
3 Application
This Act shall bind the Crown except as specified in this Act or the
regulations but nothing in this Act shall render the Crown liable to any prosecution.
4 General objectives of the Act
The general objectives of the Act are to provide for philatelic and numismatic
and other matters to be controlled by a company subject to this Act.
PART 2
THE NIUE PHILATELIC AND NUMISMATIC COMPANY
5 The Company established
There is hereby established a Company to be called the Niue Philatelic and
Numismatic Company.
6 Functions and powers of the Company
The functions of the Company shall be to adminster philatelic, numismatic
and other revenue earning options and services.
7 Government policy
In the exercise of its functions and powers under this Act the Company
shall have regard to the general policy of the Government in relation to philatelic,
numismatic and any other revenue earning options of the Government and shall
comply with any directions given by Cabinet under any such policy.
8 Board of Directors
(1) The Company shall be governed by a Board of Directors consisting of
the following directors –
(a) The Minister of Finance;
(b) The Government Solicitor;
(c) The Financial Secretary.
(2) Without limiting the generality of the powers and functions of the
Company as provided under this Act, the Board shall –
(a) Ensure that the functions of the Company are performed efficiently;
(b) Maintain the independence and integrity of the Company;
(c) Ensure the assets of the Company are as far as practicable preserved,
maintained and utilised in a way consistent with the functions of
the Company;
(d) Ensure that the Company does not contravene or fail to comply
with any of the provisions of this Act or any directions given under
section 7.
9 Chairperson
Cabinet shall appoint one of the directors to act as Chairperson.
10 Disclosure of interest
A director who has a direct or indirect pecuniary interest in a matter being
considered or about to be considered by the Board shall, as soon as possible after
the relevant facts have come to his knowledge, disclose the nature of his interest
at a meeting of the Board.
Niue Philatelic and Numismatic Act 1996
1369
11 Directors not personally liable
No director of the Company shall be personally liable for any act done or
default made by the Company or by any of its employees in good faith in the
course of operations of the Company.
12 Contracts by the Company
The Company may enter into contracts.
13 Committees
(1) The Company may appoint committees consisting of any directors of
officers of the Company.
(2) Subject to the other provisions of this Act and to directions given to it
by the Company, every committee may regulate its procedure in such a manner
as it thinks fit.
14 Delegation of powers
(1) The Company may delegate in writing to any of its committees or to
the Manager, or to any other officer of the Company any of its powers under this
Act, including this present power of delegation.
(2) Subject to any general or special directions given to it or to him by the
Company any committee or person to whom any powers are so delegated may
exercise those powers in the same manner and with the same effect as if they had
been conferred on it directly by this Act and not by delegation.
(3) Any committee or person purporting to act under any delegation under
this section shall be presumed, until the contrary is proven, to be acting under the
terms of the delegation.
(4) Every such delegation shall be revocable in writing at will, and no such
delegation shall prevent the exercise of any power by the Company itself.
(5) Until any such delegation is revoked it shall continue in force in
accordance with its tenor, notwithstanding any change in the membership of the
Company or any committee.
15 Company employees
PART 3
PERSONNEL
(1) The Company may employ such officers and employees as it considers necessary for the performance of its functions, on such terms and conditions as provided under section 17 and may at any time remove any such officer or employee from his office or employment.
(2) For the purpose of article 62 (3) of the Constitution employees of the Company shall not be regarded as members of the Niue Public Service for the purpose of their duties with the Company.
16 Application of the Niue Public Service terms and conditions
The Company may with any necessary modifications, apply the terms and
conditions applicable to the Niue Public Service.
1370 Niue Laws 2006 Vol 3
17 Annual estimates
PART 4
FINANCIAL PROVISIONS
(1) The Company shall, for each financial year prepare an estimate, in a form approved by the Minister of the amount of expenditure and revenue for all purposes and the receipts of the Company. The annual balance date of the Company shall be 30 June.
(2) The estimates so prepared shall be submitted to the Assembly not later than such date as the Minister directs, for the approval of such estimates by the Assembly, and the funds of the Company shall not be expended otherwise than in accordance with estimates of expenditure so approved.
18 Accounts and records
The Company shall keep proper accounts and records of the transactions
and affairs of the Company and shall do all things necessary to ensure that all
payments out of its funds are correctly made and properly authorised and that
adequate control is maintained over the assets of or in the custody of the Company
and over incurring of liabilities by the Company.
19 [Repealed by 2003/262]
20 Annual report
The Company shall within 3 months after the end of the Company’s
financial year prepare and furnish to Cabinet and the Assembly a report on its
operation during the year ended on that date together with financial statements
in respect of that year in such form as the Minister approves.
21 Taxation
The Company shall be subject to taxation.
22 Dividends
The Company shall pay a dividend to the Government as agreed by the
Board.
23 Regulations
PART 5
MISCELLANEOUS
Cabinet may on the recommendation of the Company make regulations necessary for carrying out or giving full effect to this Act.
1371
NIUE TRUST FUND ACT 2004
2004/226 – 19 May 2004
|
1 |
Short title |
6 |
Provision of information |
|
2 |
Interpretation |
7 |
Information for the Assembly |
|
3 |
Status of Fund |
8 |
Taxation exemption |
|
4 |
Government contributions |
9 |
Secretarial support |
|
5 |
Application of money received by |
10 |
Regulations |
|
Government |
To implement in Niue the Agreement concerning a Trust Fund for Niue and to make financial provision for the Fund
1 Short title
This is the Niue Trust Fund Act 2004.
2 Interpretation
In this Act –
“Advisory Committee” means the Advisory Committee for the Fund;
“Agreement” means the international treaty to be concluded, entitled the
Agreement concerning a Trust Fund for Niue, to which Niue will be a
party;
“Auditor” means the Auditor appointed by the Board under article 22 of
the Agreement
“Board” means the Board of Directors of the Fund;
“Fund” means the Niue Trust Fund to be set up by the Agreement;
“Minister” means the Minister for Finance;
“public money” has the same meaning as in the Public Revenues Act 1959.
3 Status of Fund
(1) The Fund is a body corporate with all the rights and powers of a natural
person of full age and capacity, to be exercised for the purposes of the Fund.
(2) The Fund is not a public fund of Niue and the capital and revenue
(except money referred to in section 5) of the Fund is not public money of Niue
nor subject in Niue law to control and accounting except as provided by this Act.
4 Government contributions
(1) The Government may at any time contribute to the Fund –
(a) Such moneys as may be appropriated for the purpose by the
Assembly; and
(b) Money or securities received by the Government from any other
source.
1372 Niue Laws 2006 Vol 3
(2) The Government may without further procedure make an initial contribution of $50,000 to the Fund.
(3) Contributions under this section may be made only as direct cash payments, donations, or interest free loans.
5 Application of money received by Government
Money received by the Government from the Fund –
(a) Shall become public money and shall be paid only into the Niue
Government Account until article 57 of the Constitution;
(b) Shall be spent only under Part 4 of the Constitution; and
(c) Shall be accounted for under Part 4 of the Constitution.
6 Provision of information
The Government and any public officer or other person may, and shall on
request, give to the Board, the Advisory Committee or any other person authorised
by them or on their behalf –
(a) Any information or documents which the Auditor requires to fulfil
its obligations under article 22 of the Agreement;
(b) Any information or documents relating to the national budget,
annual estimates or appropriation for the service of the financial
year before or after the national budget has been presented to the
Assembly;
(c) The annual accounts of Niue furnished under section 25 of the Public
Revenues Act 1959; and
(d) The audit report prepared under article 60 of the Constitution.
7 Information for the Assembly
The following documents shall be laid before the Assembly at its sitting
next following the date on which the document is received by Government –
(a) The annual report by the Board;
(b) The annual accounts of the Fund;
(c) The report by the Auditor of the Fund on its annual accounts; and
(d) The annual report, and the first 6 monthly report, of the Advisory
Committee.
8 Taxation exemption
Contributions to and income received by the Fund shall be exempt from
payment of all taxes, rates and duties in the hands of the Fund.
9 Secretarial support
The Government shall provide the administrative, secretarial and other
services necessary for the purposes of the Fund.
10 Regulations
Cabinet may make regulations for the purposes of this Act.
1373
OCCUPIERS’ LIABILITY ACT 1962
1962/31 (NZ) – 1 January 1963
|
1 |
Short title |
7 |
Occupier ’s duty to contractual visitors |
|
2 |
Interpretation |
8 |
Landlord’s liability in virtue of obligation |
|
3 |
Application of sections 4 and 5 |
to repair | |
|
4 |
Extent of occupier ’s ordinary duty |
9 |
Act not to apply to certain contracts of hire |
|
5 |
Effect of contract on occupier ’s liability to |
or carriage | |
|
third party |
10 |
Act to bind the Crown | |
|
6 |
Contribution between landlord and tenant | ||
|
as joint tortfeasors |
To amend the law relating to the liability of occupiers and others for injury or damage resulting to persons or goods lawfully on any land or other property from dangers due to the state of the property or to things done or omitted to be done there
1 Short title
This is the Occupiers’ Liability Act 1962.
2 Interpretation
In this Act –
“premises” includes land;
“structure” includes any vessel, vehicle, or aircraft.
3 Application of sections 4 and 5
(1) The rules enacted by sections 4 and 5 shall have effect, in place of the
rules of the common law, to regulate the duty which an occupier of premises owes
to his visitors in his capacity as an occupier in respect of dangers due to the state
of the premises or to things done or omitted to be done on them.
(2) The rules so enacted shall regulate the nature of the duty imposed by
law in consequence of a person’s occupation or control of premises and of any
invitation or permission he gives, or is to be treated as giving, to another to enter
or use the premises, but they shall not alter the rules of the common law as to the
persons on whom a duty is so imposed or to whom it is owed; and accordingly for
the purpose of the rules so enacted the persons who are to be treated as an occupier
and as his visitors are the same as the persons who would at common law be
treated as an occupier and as his invitees or licensees.
(3) Subject to section 9, the rules so enacted in relation to an occupier of
premises and his visitors shall also apply, in like manner and to the like extent as
the principles applicable at common law and to an occupier of premises and his
invitees or licensees would apply, to regulate –
1374 Niue Laws 2006 Vol 3
(a) The obligations of a person occupying or having control over any fixed or movable structure; and
(b) The obligations of a person occupying or having control over any premises or structure in respect of damage to property, including the property of persons who are not themselves his visitors.
4 Extent of occupier’s ordinary duty
(1) An occupier of premises owes the same duty (in this Act referred to as
the common duty of care) to all his visitors, except so far as he is free to and does
extend, restrict, modify, or exclude his duty to any visitor or visitors by agreement
or otherwise.
(2) The common duty of care is a duty to take such care as in all the
circumstances of the case is reasonable to see that the visitor will be reasonably
safe in using the premises for the purposes for which he is invited or permitted by
the occupier to be there.
(3) The circumstances relevant for the present purpose include the degree
of care, and of want of care, which would ordinarily be looked for in such a visitor.
(4) In determining whether the occupier of premises has discharged the
common duty of care to a visitor, regard is to be had to all the circumstances.
(5) Where damage is caused to a visitor by a danger of which he had been
warned by the occupier, the warning is not to be treated without more as absolving
the occupier from liability, unless in all the circumstances it was enough to enable
the visitor to be reasonably safe.
(6) Where damage is caused to a visitor by a danger due to the faulty
execution of any work of construction, reconstruction, demolition, maintenance,
repair, or other like operation by an independent contractor employed by the
occupier, the occupier is not to be treated without more as answerable for the
danger if in all the circumstances he had acted reasonably in entrusting the work
to an independent contractor and had taken such steps (if any) as he reasonably
ought in order to satisfy himself that the contractor was competent and that the
work had been properly done.
(7) The common duty of care does not impose on an occupier any obligation
to a visitor in respect of risks willingly accepted as his by the visitor.
(8) Where the occupier fails or neglects to discharge the common duty of
care to a visitor, and the visitor suffers damage as the result partly of that fault
and partly of his own fault section 736 of the Niue Act 1966 shall apply.
(9) For the purposes of this section, persons who enter premises for any
purpose in the exercise of a right conferred by law are to be treated as permitted
by the occupier to be there for that purpose, whether they in fact have his
permission or not.
5 Effect of contract on occupier’s liability to third party
(1) Where an occupier of premises is bound by contract to permit persons
who are strangers to the contract to enter or use the premises, the common duty
of care which he owes to them as his visitors cannot be restricted or excluded by
that contract, but (subject to any provision of the contract to the contrary) shall
include the duty to perform his obligations under the contract, whether undertaken
for their protection or not, so far as those obligations go beyond the obligations
otherwise involved in the common duty of care.
(2) A contract shall not by virtue of this section have the effect, unless it
expressly so provides, of making an occupier who has taken all reasonable care
answerable to strangers to the contract for dangers due to the faulty execution of
Occupiers’ Liability Act 1962
1375
any work of construction, reconstruction, demolition, maintenance, repair, or other like operation by persons other than himself, his servants, and persons acting under his direction and control.
(3) In this section “stranger to the contract” means a person not for the time being entitled to the benefit of the contract as a party to it or as the successor by assignment or otherwise of a party to it, and accordingly includes a party to the contract who has ceased to be so entitled.
(4) Where by the terms or conditions governing any tenancy (including a statutory tenancy which does not in law amount to a tenancy) either the landlord or the tenant is bound, though not by contract, to permit persons to enter or use premises of which he is the occupier, this section shall apply as if the tenancy were a contract between the landlord and the tenant.
6 Contribution between landlord and tenant as joint tortfeasors
(1) Where a landlord is the occupier of any part of any premises that is
used by a tenant, and damage is suffered by a visitor to that part of the premises
as a result of the fault of the landlord and of the tenant, and the tenant would, if
sued, have been liable to the visitor in respect of the damage, the landlord shall
have the same right to recover contribution from the tenant as if the tenant were a
joint occupier of that part of the premises.
(2) Where a tenant is the occupier of any part of any premises, and damage
is suffered by a visitor to that part of the premises as a result of the fault of the
tenant and of the landlord, and the landlord would, if sued, have been liable to
the visitor in respect of the damage, the tenant shall have the same right to recover
contribution from the landlord as if the landlord were a joint occupier of that part
of the premises.
(3) For the purposes of this section –
“landlord” includes both an immediate and a superior landlord;
“tenant” includes a person occupying premises under a statutory tenancy
which does not in law amount to a tenancy, or under any contract
conferring a right of occupation; and also includes a subtenant.
7 Occupier’s duty to contractual visitors
(1) Where persons enter or use, or bring or send goods to, any premises in
exercise of a right conferred on them b contract with a person occupying or having
control of the premises, the duty he owes them, in his capacity as occupier, in
respect of dangers due to the state of the premises or to things done or omitted to
be done on them shall be the common duty of care, except so far as a contrary
intention is expressed in the contract; and section 4 (2) to (8) shall apply accordingly.
(2) In determining whether in any such case the occupier has discharged
the common duty of care, so far as it is applicable, the existence and nature of the
contract shall be included in the circumstances to which regard is to be had under
section 4.
(3) Subject to section 9, this section shall apply to fixed and movable
structures as it applies to premises.
8 Landlord’s liability in virtue of obligation to repair
(1) Where premises are occupied by any person under a tenancy which
puts on the landlord an obligation to that person for the maintenance or repair of
the premises, the landlord shall owe to all persons who or whose goods may from
time to time be lawfully on the premises the same duty, in respect of dangers
arising from any default by him in carrying out that obligation, as if he were an
1376 Niue Laws 2006 Vol 3
occupier of the premises and those persons or their goods were there by his invitation or permission but without any contract.
(2) Where premises are occupied under a subtenancy, subsection (1) shall apply to any landlord of the premises (whether the immediate or a superior landlord) on whom an obligation to the occupier for the maintenance or repair of the premises is put by the subtenancy, and for that purpose any obligation to the occupier which the subtenancy puts on a mesne landlord of the premises, or is treated by virtue of this provision as putting on a mesne landlord, shall be treated as put by it also on any landlord on whom the mesne landlord’s tenancy puts the like obligation towards the mesne landlord.
(3) For the purposes of this section, where premises comprised in a tenancy (whether occupied under that tenancy or under a subtenancy) are put to a use not permitted by the tenancy, and the landlord of whom they are held under the tenancy is not debarred by his acquiescence or otherwise from objecting or from enforcing his objection, then no persons or goods whose presence on the premises is due solely to that use of the premises shall be deemed to be lawfully on the premises as regards that landlord or any superior landlord of the premises, whether or not they are lawfully there as regards an inferior landlord.
(4) For the purposes of this section, a landlord shall not be deemed to have made default in carrying out any obligation to the occupier of the premises unless his default is such as to be actionable at the suit of the occupier or, in the case of a superior landlord whose actual obligation is to an inferior landlord, his default in carrying out that obligation is actionable at the suit of the inferior landlord.
(5) This section shall not put a landlord of premises under a greater duty
than the occupier to persons who or whose goods are lawfully on the premises by
reason only of the exercise of a right of way.
(6) Nothing in this section shall relieve a landlord of any duty which he is
under apart from this section.
(7) For the purposes of this section, obligations imposed by any enactment
in virtue of a tenancy shall be treated as imposed by the tenancy; and “tenancy”
includes a statutory tenancy which does not in law amount to a tenancy, and
includes also any contract conferring a right of occupation; and “landlord” shall
be construed accordingly.
9 Act not to apply to certain contracts of hire or carriage
This Act shall not apply to the obligations of any person under or by virtue
of any contract for the hire of, or for the carriage for reward of persons or goods
in, any vehicle, vessel, aircraft, or other means of transport, or under or by virtue
of any contract of bailment.
10 Act to bind the Crown
This Act shall bind the Crown.
1377
PARTNERSHIP ACT 1908
1908/138 (NZ) – 4 August 1908
26 Procedure against partnership property for partner ’s separate debt
27 Rules as to interests and duties of partners
28 Expulsion of partner
29 Retirement from partnership at will
30 Conditions of partnership where term
continued over
31 Duty to render accounts
32 Partners to account for private profits
33 Partner not to compete with firm
34 Rights of assignee of share in partnership
Relations of Partners to Persons Dealing With
Them
8 Power of partner to bind the firm
9 Partners bound by Acts on behalf of firm
10 Partner using credit of firm for private
purposes
11 Effect of notice that firm will not be bound
by acts of partner
12 Liability of partners
13 Liability of the firm for wrongs
14 Misapplication of money received for firm
15 Joint and several liability
16 Improper employment of trust property for
partnership purposes
17 Persons liable by “holding out”
18 Admissions and representations of partners
19 Notice to acting partner to be notice to firm
20 Liabilities of incoming and outgoing
partners
21 Revocation of continuing guaranty by
change in firm
Relations of Partners to One Another
22 Variation by consent of terms of
partnership
23 Partnership property
24 Property bought with partnership money
25 Conversion into personal estate of land
Dissolution of Partnership and its Consequences
35 Dissolution by expiration or notice
36 Dissolution by death, bankruptcy, or charge
37 Dissolution by illegality of partnership
38 Dissolution by the Court
39 Rights of persons dealing with firm against
apparent members
40 Right of partners to notify dissolution
41 Continuing authority of partners for
purposes of winding up
42 Rights of partners as to application of
partnership property
43 Apportionment of premium where
partnership prematurely dissolved
44 Rights where partnership dissolved for
fraud or misrepresentation
45 Right of outgoing partner to share profits
made after dissolution
46 Retiring or deceased partner ’s share to be
debt
47 Distribution of assets on final settlement of
accounts
PART 2
SPECIAL PARTNERSHIPS
48 Part 1 not to affect special partnerships
49 Special partnerships may be formed, except
for banking and insurance
50 General and special partners, and their
liabilities
51 Certificates to be signed by partners
held as partnership property 52 Style of partnership
1378
Niue Laws 2006 Vol 3
|
53 |
When special partner deemed general |
|
partner | |
|
54 |
Certificates to be acknowledged and |
|
registered | |
|
55 |
False statement in certificate: partners liable |
|
as general partners | |
|
56 |
Copy of certificate to be published |
|
57 |
Duration of partnerships |
|
58 |
Certificate to be signed on renewal |
|
59 |
Capital stock not to be withdrawn |
|
60 |
When special partners liable to refund |
|
capital withdrawn |
To consolidate certain enactments relating to partnership
1 Short title
This is the Partnership Act 1908.
2 Interpretation
In this Act, “business” includes every trade, occupation, or profession.
3 Saving for rules of equity and common law
The rules of equity and of common law applicable to partnership shall
continue in force except so far as they are inconsistent with this Act.
PART 1
THE GENERAL LAW RELATING TO PARTNERS
Nature of Partnership
4 Definition of partnership
(1) Partnership is the relation which subsists between persons carrying on
a business in common with a view to profit.
(2) The relationship between members of a company or association
registered under the Companies Act 2006 is not a partnership within the meaning
of this Act.
5 Rules for determining existence of partnership
In determining whether a partnership does or does not exist regard shall
be had to the following rules:
(a) Joint tenancy, tenancy in common, joint property, or part ownership
does not of itself create a partnership as to anything so held or
owned, whether the tenants or owners do or do not share any profits
made by the use of it;
(b) The sharing of gross returns does not of itself create a partnership,
whether the persons sharing such returns have or have not a joint
or common right or interest in any property from which or from
the use of which the returns are derived;
(c) The receipt by a person of a share of the profits of a business is
prima facie evidence that he is a partner in the business, but the
receipt of such a share or of a payment contingent on or varying
with the profits of a business does not of itself make him a partner
in the business and, in particular –
Partnership Act 1908
1379
(i) the receipt by a person of a debt or other liquidated amount, by instalments or otherwise, out of the accruing profits of a business does not of itself make him a partner in the business or liable as such;
(ii) a contract for the remuneration of a servant or agent of a person engaged in a business by a share of the profits of the business does not of itself make the servant or agent a partner in the business or liable as such;
(iii) a person being the widow or child of a deceased partner, and
receiving by way of annuity a portion of the profits made in
the business in which the deceased person was a partner, is not
by reason only of such receipt a partner in the business or liable
as such;
(iv) the advance of money by way of loan to a person engaged or
about to engage in any business on a contract with that person
that the lender shall receive a rate of interest varying with the
profits, or shall receive a share of the profits arising from
carrying on the business, does not of itself make the lender a
partner with the person or persons carrying on the business,
or liable as such:
Provided that the contract is in writing, and signed by or on
behalf of all the parties to it;
(v) a person receiving by way of annuity or otherwise a portion of
the profits of a business in consideration of the sale by him of
the goodwill of the business is not, by reason only of such
receipt, a partner in the business or liable as such.
6 Rights of person lending or selling in consideration of share of profits in case of bankruptcy
In the event of any person to whom money has been advanced by way of loan upon such a contract as is mentioned in section 5, or of any buyer of a goodwill in consideration of a share of the profits of the business, being adjudged a bankrupt, entering into an arrangement to pay his creditors less than 100 cents in the dollar, or dying in insolvent circumstances the lender of the loan shall not be entitled to recover anything in respect of his loan, and the seller of the goodwill shall not be entitled to recover anything in respect of the share of profits contracted for, until the claims of the other creditors of the borrower or buyer for valuable consideration in money or money’s worth have been satisfied.
7 Meaning of “firm”
Persons who have entered into partnership with one another are for the
purposes of this Act called collectively a “firm”, and the name under which their
business is carried on is called the “firm name”.
Relations of Partners to Persons Dealing with Them
8 Power of partner to bind the firm
Every partner is an agent of the firm and his other partners, for the purpose
of the business of the partnership; and the acts of every partner who does any act
for carrying on in the usual way business of the kind carried on by the firm of
which he is a member bind the firm and his partners, unless the partner so acting
has in fact no authority to act for the firm in the particular matter, and the person
with whom he is dealing either knows that he has no authority or does not know
or believe him to be a partner.
1380 Niue Laws 2006 Vol 3
9 Partners bound by acts on behalf of firm
(1) An act or instrument relating to the business of the firm and done or
executed in the firm name, or in any other manner showing an intention to bind
the firm, by any person authorised for the purpose whether a partner or not, is
binding on the firm and all the partners.
(2) This section shall not affect any general rule of law relating to the
execution of deeds or negotiable instruments.
10 Partner using credit of firm for private purposes
(1) Where one partner pledges the credit of the firm for a purpose
apparently not connected with the firm’s ordinary course of business, the firm is
not bound unless he is in fact specially authorised by the other partners.
(2) This section does not affect any personal liability incurred by an
individual partner.
11 Effect of notice that firm will not be bound by acts of partner
If it has been agreed between the partners that any restriction shall be placed
on the power of any one or more of them to bind the firm, no act done in
contravention of the agreement is binding on the firm with respect to persons
having notice of the agreement.
12 Liability of partners
Every partner in a firm is liable jointly with the other partners for all debts
and obligations of the firm incurred while he is a partner; and after his death his
estate is also severally liable in a due course of administration for such debts and
obligations as far as they remain unsatisfied, but subject to the prior payment of
his separate debts.
13 Liability of the firm for wrongs
Where by the wrongful act or omission of any partner acting in the ordinary
course of the business of the firm, or with the authority of his co-partners, loss or
injury is caused to any person not being a partner in the firm, or any penalty is
incurred, the firm is liable therefor to the same extent as the partner so acting or
omitting to act.
14 Misapplication of money received for firm
The firm is liable to make good the loss –
(a) Where one partner acting within the scope of his apparent authority
receives the money or property of a third person and misapplies it;
and
(b) Where a firm in the course of its business receives money or property
of a third person, and the money or property so received is
misapplied by one or more of the partners while it is in the custody
of the firm.
15 Joint and several liability
Every partner is liable jointly with his co-partners and also severally for
everything for which the firm, while he is a partner in it, becomes liable under
sections 13 and 14.
Partnership Act 1908
1381
16 Improper employment of trust property for partnership purposes
(1) If a partner, being a trustee, improperly employs trust property in the
business or on the account of the partnership, no other partner is liable for the
trust property to the persons beneficially interested in it.
(2) (a) This section shall not affect any liability incurred by any partner by
reason of his having notice of a breach of trust.
(b) Nothing in this section shall prevent trust money from being
followed and recovered from the firm if still in its possession or
under its control.
17 Persons liable by “holding out”
(1) Every one who, by words spoken or written, or by conduct, represents
himself, or who knowingly suffers himself to be represented, as a partner in a
particular firm is liable as a partner to any one who has, on the faith of any such
representation, given credit to the firm, whether the representation has or has not
been made or communicated to the person so giving credit by or with the
knowledge of the apparent partner making the representation or suffering it to be
made.
(2) Where after a partner ’s death the partnership business is continued in the old firm’s name, the continued use of that name or of the deceased partner ’s name as part of it shall not of itself make his executors or administrators estate or effects liable for any partnership debts contracted after his death.
18 Admissions and representations of partners
An admission or representation made by any partner concerning the
partnership affairs, and in the ordinary course of its business, is evidence against
the firm.
19 Notice to acting partner to be notice to firm
Notice to any partner who habitually acts in the partnership business of
any matter relating to partnership affairs operates as notice to the firm, except in
the case of a fraud on the firm committed by or with the consent of that partner.
20 Liabilities of incoming and outgoing partners
(1) A person who is admitted as a partner into an existing firm does not
thereby become liable to the creditors of the firm for anything done before he
became a partner.
(2) A partner who retires from a firm does not thereby cease to be liable for
partnership debts or obligations incurred before his retirement.
(3) A retiring partner may be discharged from any existing liabilities by an
agreement to that effect between himself and the members of the firm as newly
constituted and the creditors, and this agreement may be either express or inferred
as a fact from the course of dealing between the creditors and the firm as newly
constituted.
21 Revocation of continuing guaranty by change in firm
A continuing guaranty given either to a firm or to a third person in respect
of the transactions of a firm is, in the absence of agreement to the contrary, revoked
as to future transactions by any change in the constitution of the firm to which, or
of the firm in respect of the transactions of which, the guaranty was given.
1382 Niue Laws 2006 Vol 3
Relations of Partners to One Another
22 Variation by consent of terms of partnership
The mutual rights and duties of partners, whether ascertained by agreement
or defined by this Act, may be varied by the consent of all the partners, and such
consent may be either express or inferred from a course of dealing.
23 Partnership property
(1) All property and rights and interests in property originally brought
into the partnership stock, or acquired (whether by purchase or otherwise) on
account of the firm or for the purposes and in the course of the partnership business,
are called in this Act “partnership property” and must be held and applied by the
partners exclusively for the purposes of the partnership and under the partnership
agreement.
(2) The legal estate or interest in any land which belongs to the partnership
shall devolve under the nature and tenure thereof and the general rules of law
thereto applicable, but in trust, so far as necessary, for the persons beneficially
interested in the land under this section.
(3) Where co-owners of an estate or interest in any land not being itself
partnership property are partner as to profits made by the use of that land or
estate, ad purchase other land or estate out of the profits to be used in like manner,
the land or estate so purchased belongs to them, in the absence of an agreement to
the contrary, not as partners, but as co-owners for the same respective estates and
interests as are held by them in the land or estate first mentioned at the date of the
purchase.
24 Property bought with partnership money
Unless the contrary intention appears, property bought with money
belonging to the firm is deemed to have been bought on account of the firm.
25 Conversion into personal estate of land held as partnership property
Where land has become partnership property it shall, unless the contrary
intention appears, be treated as between the partners (including the representatives
of a deceased partner), and also as between the heirs of a deceased partner and his
executors or administrators, as personal and not real estate.
26 Procedure against partnership property for partner’s separate debt
(1) A writ of execution shall not issue against any partnership property
except on a judgement against the firm.
(2) The Court or a Judge may on the application by summons of any
judgment creditor of a partner, make an order charging that partner ’s interest in
the partnership property and profits with payment of the amount of the judgment
debt and interest on it, and may by the same or a subsequent order appoint a
receiver of that partner ’s share of profits (whether already declared or accruing),
and of any other money coming to him in respect of the partnership, and direct all
accounts and inquiries and give all other orders and directions which might have
been directed or given if the charge had been made in favour of the judgment
creditor by the partner, or which the circumstances of the case require.
(3) The other partner or partners shall be at liberty at any time to redeem
the interest charged or, in case of a sale being directed, to purchase the same.
Partnership Act 1908
1383
27 Rules as to interests and duties of partners
The interests of partners in the partnership property, and their rights and
duties in relation to the partnership, shall be determined, subject to any agreement
(express or implied) between the partners, by the following rules:
(a) All the partners are entitled to share equally in the capital and profits
of the business, and must contribute equally towards the losses,
whether of capital or otherwise, sustained by the firm.
(b) The firm must indemnify every partner in respect of payments made
and personal liabilities incurred by him –
(i) in the ordinary and proper conduct of the business of the firm;
or
(ii) in or about anything necessarily done for the preservation of
the business or property of the firm.
(c) A partner making, for the purpose of the partnership, any actual
payment or advance beyond the amount of capital which he has
agreed to subscribe is entitled to interest at the rate of 5% per annum
from the date of the payment or advance.
(d) A partner is not entitled, before the ascertainment of profits, to
interest on the capital subscribed by him.
(e) Every partner may take part in the management of the partnership
business.
(f) No partner shall be entitled to remuneration for acting in the
partnership business.
(g) No person may be introduced as a partner without the consent of
all existing partners.
(h) Any difference arising as to ordinary matters connected with the
partnership business may be decided by a majority of the partners,
but no change may be made in the nature of the partnership business
without the consent of all existing partners.
(i) The partnership books are to be kept at the place of business of the
partnership (or the principal place if there is more than one), and
every partner may have access to and inspect and copy any of them.
28 Expulsion of partner
A majority of the partners cannot expel any partner unless a power to do
so has been conferred by express agreement between the partners.
29 Retirement from partnership at will
(1) Where no fixed term has been agreed upon for the duration of the
partnership, any partner may determine the partnership at any time on giving
notice of his intention so to do to all the other partners.
(2) Where the partnership has originally been constituted by deed, a notice
in writing, signed by the partner giving it, shall be sufficient for this purpose.
30 Conditions of partnership where term continued over
(1) Where a partnership entered into for a fixed term is continued after the
term has expired, and without any expressed new agreement, the rights and duties
of the partners remain the same as they were at the expiration of the term, so far
as is consistent with the incidents of a partnership at will.
(2) A continuance of the business by the partners, or such of them as
habitually acted therein during the term, without any settlement or liquidation of
the partnership affairs is presumed to be a continuance of the partnership.
1384 Niue Laws 2006 Vol 3
31 Duty to render accounts
Partners are bound to render true accounts and full information of all things
affecting the partnership to any partner or his legal representatives.
32 Partners to account for private profits
(1) Every partner must account to the firm for any benefit derived by him
without the consent of the other partners from any transaction concerning the
partnership, or from any use by him of the partnership property, name, or business
connection.
(2) This section applies also to transactions undertaken after a partnership
has been dissolved by the death of a partner, and before the affairs thereof have
bee completely wound up, either by any surviving partner or by the representatives
of the deceased partner.
33 Partner not to compete with firm
If a partner, without the consent of the other partners, carries on any business
of the same nature as and competing with that of the firm, he must account for
and pay over to the firm all profits made by him in that business.
34 Rights of assignee of share in partnership
(1) An assignment by any partner of his share in the partnership, either
absolute or by way of mortgage, does not, as against the other partners, entitle the
assignee, during the continuance of the partnership, to interfere in the management
or administration of the partnership business or affairs, or to require any account
of the partnership transactions, or to inspect the partnership books, but entitles
the assignee only to receive the share of profits to which the assigning partner
would otherwise be entitled, and the assignee must accept the account of profits
agreed to by the partners.
(2) In case of a dissolution of the partnership, whether as respects all the
partners or as respects the assigning partner, the assignee is entitled to receive the
share of the partnership assets to which the assigning partner is entitled as between
himself and the other partners, and, for the purpose of ascertaining that share, to
an account as from the date of the dissolution.
Dissolution of Partnership and its Consequences
35 Dissolution by expiration or notice
(1) Subject to any agreement between the partners, a partnership is
dissolved –
(a) If entered into for a fixed term, by the expiration of that term;
(b) If entered into a single adventure or undertaking, by the termination
of that adventure or undertaking;
(c) If entered into for an undefined time, by any partner giving notice
to the other or others of his intention to dissolve the partnership.
(2) In subsection (1)(c) the partnership is dissolved as from the date
mentioned in the notice as the date of dissolution, or, if no date is so mentioned, as
from the date of the communication of the notice.
36 Dissolution by death, bankruptcy, or charge
(1) Subject to any agreement between the partners, every partnership is
dissolved as regards all the partners by the death or bankruptcy of any partner.
(2) A partnership may, at the option of the other partners, be dissolved if
any partner suffers his share of the partnership property to be charged under this
Act for his separate debt.
Partnership Act 1908
1385
37 Dissolution by illegality of partnership
A partnership is in every case dissolved by the happening of any event
which makes it unlawful for the business of the firm to be carried on or for the
members of the firm to carry it on in partnership.
38 Dissolution by the Court
On application by a partner the Court may declare a dissolution of the
partnership in any of the following cases –
(a) Where a partner is found lunatic by inquisition, or is shown to the
satisfaction of the Court to be of permanently unsound mind, in
either of which cases the application may be made as well on behalf
of that partner by his committee or next friend or person having
title to intervene as by any other partner;
(b) Where a partner, other than the partner suing, becomes in any other
way permanently incapable of performing his part of the
partnership contract;
(c) Where a partner, other than the partner suing, has been guilty of
such conduct as in the opinion of the Court, regard being had to
the nature of the business, is calculated to prejudicially affect the
carrying on of the business;
(d) Where a partner, other than the partner suing, wilfully or
persistently commits a breach of the partnership agreement, or
otherwise so conducts himself in matters relating to the partnership
business that it is not reasonably practicable for the other partner
or partners to carry on the business in partnership with him;
(e) Where the business of the partnership can only be carried on at a
loss;
(f) Where circumstances have arisen which, in the opinion of the Court,
render it just and equitable that the partnership be dissolved.
39 Rights of persons dealing with firm against apparent members
(1) Where a person deals with a firm after a change in its constitution, he
is entitled to treat all apparent members of the old firm as still being members of
the firm until he has notice of the change.
(2) An advertisement in the Gazette shall be notice as to persons who had
not dealings with the firm before the date of the dissolution or change so advertised.
(3) The estate of a partner who dies, or who becomes bankrupt, or of a
partner who, not having been known to the person dealing with the firm to be a
partner, retires from the firm, is not liable for partnership debts contracted after
the date of the death, bankruptcy, or retirement respectively.
40 Right of partners to notify dissolution
On the dissolution of a partnership or retirement of a partner any partner
may publicly notify the same, and may require the other partner or partners to
concur for that purpose in all necessary or proper acts, if any, which cannot be
done without his or their concurrence.
41 Continuing authority of partners for purposes of winding up
(1) After the dissolution of a partnership the authority of each partner to
bind the firm, and the other rights and obligations of the partners, continue
(notwithstanding the dissolution) so far as may be necessary to wind up the affairs
of the partnership and to complete transactions begun but unfinished at the time
of the dissolution, but not otherwise.
1386 Niue Laws 2006 Vol 3
(2) The firm is in no case bound by the acts of a partner who has become bankrupt; but this proviso does not affect the liability of any person who has after the bankruptcy represented himself, or knowingly suffered himself to be represented, as a partner of the bankrupt.
42 Rights of partners as to application of partnership property
On the dissolution of a partnership every partner is entitled as against the
other partners in the firm, and all persons claiming through them in respect of
their interests as partners, to have the property of that partnership applied in
payment of the debts and liabilities of the firm, and to have the surplus assets
after such payment applied in payment of what may be due to the partners
respectively after deducting what may be due from them as partners of the firm;
and for that purpose any partner or his representatives may, on the termination of
the partnership, apply to the Court to wind up the business and affairs of the
firm.
43 Apportionment of premium where partnership prematurely dissolved
Where one partner has paid a premium to another on entering into a
partnership for a fixed term, and the partnership is dissolved before the expiration
of that term otherwise than by the death of a partner, the Court may order the
repayment of the premium or of such part of it as it thinks just, having regard to
the terms of the partnership contract and to the length of time during which the
partnership has continued, unless –
(a) The dissolution is, in the judgment of the Court, wholly or chiefly
due to the misconduct of the partner who paid the premium; or
(b) The partnership has been dissolved by an agreement containing
no provision for a return of any part of the premium.
44 Rights where partnership dissolved for fraud or misrepresentation
Where a partnership contract is rescinded on the ground of the fraud or
misrepresentation of one of the parties to it, the party entitled to rescind is, without
prejudice to any other right, entitled –
(a) To a lien on or right of retention of the surplus of the partnership
assets, after satisfying the partnership liabilities, for any sum of
money paid by him for the purchase of a share in the partnership
and for any capital contributed by him; and
(b) To stand in the place of the creditors of the firm for any payments
made by him in respect of the partnership liabilities; and
(c) To be indemnified, by the person guilty of the fraud or making the
representation, against all the debts and liabilities of the firm.
45 Right of outgoing partner to share profits made after dissolution
(1) Where any member of a firm dies or otherwise ceases to be a partner
and the surviving or continuing partners carry on the business of the firm with is
capital or assets without any final settlement of accounts as between the firm and
the outgoing partner or his estate, then, in the absence of any agreement to the
contrary, the outgoing partner or his estate is entitled, at the opinion of himself or
his representative, to such share of the profits made since the dissolution as the
Court may find to be attributable to the use of his share of the partnership assets,
or the interest at the rate of 5 per cent per annum on the amount of his share of the
partnership assets.
Partnership Act 1908
1387
(2) Where by the partnership contract an option is given to surviving or continuing partners to purchase the interest of a deceased or outgoing partner, and that option is duly exercised, the estate of the deceased partner or the outgoing partner, or his estate, as the case may be, is not entitled to any further or other share of profits; but if any partner assuming to act in exercise of the option does not in all material respects comply with the terms of it he is liable to account under this section.
46 Retiring or deceased partner’s share to be a debt
Subject to any agreement between the partners, the amount due from
surviving or continuing partners to an outgoing partner or the representatives of
a deceased partner, in respect of the outgoing or deceased partner ’s share, is a
debt accruing at the date of the dissolution or death.
47 Distribution of assets on final settlement of accounts
In settling accounts between the partners after a dissolution of partnership
the following rules shall, subject to any agreement, be observed –
(a) Losses, including losses and deficiencies of capital, shall be paid
first out of profits, next out of capital, and lastly, if necessary, by the
partners individually in the proportion in which they were entitled
to share profits.
(b) The assets of the firm, including the sums (if any) contributed by
the partners to make up losses or deficiencies of capital, shall be
applied in the following manner and order –
(i) in paying the debts and liabilities of the firm to persons who
are not partners in it;
(ii) in paying to each partner rateably what is due from the firm to
him for advances as distinguished from capital;
(iii) in paying to each partner rateably what is due from the firm to
him in respect of capital;
(iv) the ultimate residue, if any, shall be divided among the partners
in the proportion which profits are divisible.
PART 2
SPECIAL PARTNERSHIPS
48 Part 1 not to affect special partnerships
Part 1 shall not affect special partnerships except in so far as the general
law relating to partners is declared by sections 49-67 to be applicable to special
partnerships.
49 Special partnerships may be formed, except for banking and insurance (1) Special partnerships may be formed for the transaction of agriculture, mining, mercantile, mechanical, manufacturing, or other business, by any number of persons, upon the terms and subject to the conditions and liabilities prescribed
in this Part.
(2) Nothing shall authorise any such partnership for the purpose either of
banking or insurance.
1388 Niue Laws 2006 Vol 3
50 General and special partners, and their liabilities
Every special partnership may consist of general partners, who shall be
jointly and severally responsible as general partners are now by law, and of persons,
to be called special partners, who shall contribute to the common stock specific
sums in money as capital, beyond which they shall not be responsible for any
debt of the partnership except in cases provided in this Part.
51 Certificates to be signed by partners
All the persons forming any special partnership shall, before commencing
business, sign a certificate containing –
(a) The style of the firm under which the partnership is to be conducted;
(b) The names and places of residence of all the partners, distinguishing
the general from the special partners;
(c) The amount of capital which each special partner contributes, and
also (if any) the amount contributed by the general partners to the
common stock;
(d) The general nature of the business to be transacted;
(e) The principal or only place at which it is to be transacted; and
(f) The time when such partnership is to commence and when it is to
terminate.
52 Style of partnership
Such style or firm shall contain the names of general partners only, or the
name of one such partner, with (in either case) the addition of the words “and
Company”, and the general partners only shall transact the business of the
partnership.
53 When special partner deemed general partner
If in carrying on such business or in any contract connected with it the
name of any special partner is used with his consent or privity, or if he personally
makes any contract respecting the concerns of the partnership, he shall be deemed
to be a general partner with respect to the contract or matter in which his name
has been so used or as to which he so contracted.
54 Certificates to be acknowledged and registered
A special partnership shall not be deemed formed until such certificate is
acknowledged by each partner before the Court, and registered in the office of the
Court in a book to be kept for that purpose by the Registrar open to public
inspection.
55 False statement in certificate: partners liable as general partners
(1) If any false statement is made in any such certificate, all the persons
interested in the special partnership shall be liable for all the engagements thereof
as general partners.
(2) No clerical error or matter not of substance shall be deemed false within
the meaning of this section unless some person is prejudiced thereby, in which
case the special partners shall be liable to the person so prejudiced.
Partnership Act 1908
1389
56 Copy of certificate to be published
(1) A copy of such certificate shall be published once at least in the Gazette
and twice in some newspaper published at the intended principal place of business
of the special partnership, or at the nearest place to such place of business where
a newspaper is published.
(2) If such publication is not so made, the partnership shall be deemed
general.
57 Duration of partnerships
A special partnership shall not be entered into for a longer period than 7
years, but any such partnership may be renewed at the end of that period or at the
termination of any shorter period for which it was formed.
58 Certificate to be signed on renewal
(1) Upon every renewal or continuation beyond the time originally agreed
on for the duration of a special partnership, a certificate thereof shall be signed,
acknowledged, registered and published in like manner as the original certificate.
(2) Every partnership renewed or continued otherwise than in conformity
with this section shall be deemed general.
59 Capital stock not to be withdrawn
During the continuance of any special partnership no part of the certified
capital thereof shall be withdrawn, nor shall any division or interest or profit be
made so as to reduce such capital below the aggregate amount stated in the
certificate.
60 When special partners liable to refund capital withdrawn
(1) If any part of such capital is withdrawn, or any such division is made,
so that at any time during the continuance or at the termination of the special
partnership the assets are insufficient to pay the partnership debts, the special
partners shall be severally liable to refund every sum received by them respectively
in diminution of such capital or by way of such interest or profit.
(2) All such sums may be recovered as money had and received by the
respectively to the use of the general partners; and may in the case of any judgment
being obtained against the general partners, be recovered by the plaintiff against
the special partners, or any of them, by process of execution issued under such
judgment by leave of the Court.
61 Suits to be by and against general partners
All suits respecting the business of any special partnership shall be
prosecuted by and against the general partners only, except in the cases in which
it is provided by this Act that special partners shall or may be deemed general
partners, in which cases every special partner who becomes liable as a general
partner may be joined or not in the action as a defendant, at the discretion of the
party suing.
62 Dissolution, how effected
A dissolution of a special partnership shall not take place, except by
operation of law, before the time specified in the certificate, unless a notice of such
dissolution is signed, acknowledged, registered, and published in like manner as
the original certificate.
1390 Niue Laws 2006 Vol 3
63 Cases not specially provided for
In all cases not otherwise provided for all the members of a special
partnership shall be subject to the liabilities and entitled to the rights of general
partners.
64 Accounting
The general partners shall be liable to account to each other and to the
special partners for their management of the partnership concerns as other partners
are by law.
65 Frauds by partners
Every partner guilty of any fraud in the affairs of the partnership shall be
liable civilly to the party injured to the extent of his damage, and shall also be
liable to an indictment for a crime punishable by fine or imprisonment, or both, at
the discretion of the Court.
66 Books of account to be kept, and to be open to inspection
If the general partners do not at all times cause regular books of account to
be kept, or do not have the same open at all reasonable times to the inspection of
the special partners, such special partners shall be entitled to have the special
partnership dissolved and the accounts of it taken by the Court.
67 Liability of special partners if books not kept
If the books of any special partnership are, with the knowledge or privity
of the special partners or any of them, kept incorrectly, or contain any false or
deceptive entries, whereby the ascertainment of the matters mentioned in sections
59 and 60 are or may be affected, the certified capital of such special partners or
such one or more of them having such knowledge or privity shall as against
creditors be deemed to have been withdrawn, and they or he shall be liable
accordingly under section 60.
––––––––––––––––––––
SCHEDULE [Not reproduced]
1391
PARTNERSHIP APPLICATION ACT 1994
1994/180 – 28 March 1994
|
1 |
PART 1 PRELIMINARY Short title |
11 |
PART 3 LIMITED LIABILITY PARTNERSHIPS Appointment of Registrar |
|
2 |
Interpretation |
12 |
Application for registration |
|
13 |
Annual certificates of registration | ||
|
PART 2 |
14 |
Address for service | |
|
GENERAL AND SPECIAL PARTNERSHIPS |
15 |
Display name | |
|
3 |
Partnership Act |
16 |
Liability for debts |
|
4 |
– |
17 |
Power of partner to bind the partnership |
|
5 |
Formation |
18 |
Jurisdiction |
|
6 |
Special partnerships |
19 |
No separate legal entity |
|
7 |
Penalties |
20 |
Assignment |
|
8 |
Regulations |
21 |
Secrecy |
|
9 |
Partnership interests |
22 |
Translations |
|
10 |
Passive income |
23 |
No action to lie against certain persons |
|
24 |
Power of exemption | ||
|
25 |
Prohibitions by the Minister |
1 Short title
PART 1
PRELIMINARY
This is the Partnership Application Act 1994.
2 Interpretation
“Deputy Registrar” means a deputy registrar of limited liability
partnerships appointed under section 11;
“Minister” means the Minister of Justice;
“Registrar” means a registrar of limited liability partnerships appointed
under section 11.
3 Partnership Act
(1) [Spent]
PART 2
GENERAL AND SPECIAL PARTNERSHIPS
(2) References in the Partnership Act 1908 to the High Court are to the High Court of Niue with respect to a partnership formed in Niue, unless the partners of that partnership unanimously agree that such references are to the High Court of New Zealand.
1392 Niue Laws 2006 Vol 3
of partnership constituting that partnership is executed or signed in Niue by all the partners of it or by their duly appointed attorneys.
6 Special partnerships
(1) Any partner of a special partnership formed in Niue under Part 2 of
the Partnership Act 1908 who would be a general partner solely by virtue of the
operation of section 53 of the Partnership Act 1908 shall be deemed to be a special
partner notwithstanding that section if the making of any contract by that partner
respecting the concerns of the partnership, or the use or consensual use of that
partner ’s name in relation to the carrying on of the business of the partnership or
any contract connected with it, is directly related to a business principally carried
on outside Niue.
(2) Section 57 of the Partnership Act 1908 shall not apply to limit the
duration of any special partnership formed in Niue under Part 2 of the Partnership
Act 1908 to any period.
7 Penalties
Any person who –
(a) Does anything which is forbidden by or under this Act; or
(b) Omits to do something required or directed by or under this Act; or
(c) Contravenes or fails to comply with this Act,
shall be guilty of an offence and shall be liable on conviction to a fine not exceeding
50 penalty units or to imprisonment for a term not exceeding one year or to both.
8 Regulations
Cabinet may make Regulations prescribing all matters and things required
or authorised by this Act to be prescribed or which are necessary for carrying out
or giving effect to this Act including the prescribing of penalties for breaches of
such Regulations not exceeding a fine of 100 penalty units.
9 Partnership interests
(1) A partnership (“the first partnership”) may be a partner in another
partnership (“the second partnership”) in which case the members of the first
partnership shall become individual members of the second partnership, excepting
that for the purposes of determining the rights of the partners of the second
partnership inter se and for the purposes of Part III they shall be deemed to be one
person. Nothing in this subsection applies to, or prevents, a partner in a partnership
creating a sub-partnership in equity of his legal interest as regards either his capital
or income or both.
(2) A person may assign in equity any legal or equitable interest in
partnership capital or income, or both, providing the assignment is in writing and
is unconditional.
(3) Subsection (2) shall apply both to present property, being a present
right to receive future income and to future property, being the income to be
received in the future.
Partnership Application Act 1994
1393
10 Passive income
(1) Persons who are jointly in receipt of passive income from any
investment and who carry on no business in respect of that investment other than
the raising of capital in relation to it, the taking of accounts in respect of it, and the
contracting for maintenance for it are deemed not to be partners by virtue of such
joint receipt.
(2) Passive income from any investment shall for the purposes of this
section include any income derived from any interest as a beneficiary under a
trust, and any income derived from the holding of any income-producing property,
providing always that the expenditure referred to in subsection (1) does not in
any 3 year period exceed 15 per cent of the total income derived from that interest
or property in that period before taking into account capital costs (and interest on
it) with respect to it.
(3) Income-producing property shall for the purposes of this section include
any intellectual property rights or now-how which generate income, providing
that any services supplied in relation to or in conjunction with the income thereby
generated does not in any 3 year period exceed 15 per cent in value of the total
income derived from that interest or property in that period.
(4) This section shall not apply to any persons who are jointly in receipt of
passive income from any investment and who enter into any deed or written
Agreement of Partnership with each other, whose status shall thereafter be
determined under the general law.
PART 3
LIMITED LIABILITY PARTNERSHIPS
11 Appointment of Registrar
(1) There shall be appointed by the Niue Public Service Commission on
the advice of Cabinet –
(a) A Registrar of limited liability partnerships to carry out the duties
and functions vested in him by or under this Act;
(b) Such Deputy Registrars of limited liability partnerships and other
officers as are required for the purposes of this Act.
(2) Anything by this Act appointed or authorised or required to be done
by the Registrar may be done by any such Deputy Registrar and shall be as valid
and effectual as if done by the Registrar, and the term Registrar shall for the
remainder of this Act be deemed to include any Deputy Registrar.
(3) All courts, judges, and persons acting judicially shall take judicial notice
of the seal and also the signature of the Registrar.
(4) For the purposes of ascertaining whether a limited liability partnership
is complying with this Part the Registrar or any person authorised by him may
inspect any book, minute book, register or record kept by the limited liability
partnership.
(5) Any person appointed under subsection (1) who except for the purposes
of this Act or except in the course of criminal proceedings makes a record of,
divulges or communicates to any other person any information which he possesses
or has acquired –
(a) By reason of his carrying out the duties and functions of his office;
or
(b) By reason of access forwarded or obtained by him to any document
or register kept by the Registrar or book, minute book, register or
record kept by any limited liability partnership,
1394 Niue Laws 2006 Vol 3
shall be guilty of an offence and shall be liable on conviction to a fine not exceeding
50 penalty units or to a term of imprisonment not exceeding 2 years in respect of
each such offence.
12 Application for registration
(1) Any partnership formed in Niue that is not a special partnership formed
of the Partnership Act 1908 under Part 2 may apply to the Registrar for registration
as a limited liability partnership.
(2) Any application of the kind referred to in subsection (1) shall be on a
form prescribed by the Minister and shall be accompanied by the prescribed fee.
(3) Every such application shall be signed by all the partners to the
partnership, and every such application shall specify a partner of the partnership
or a duly appointed attorney thereof such that the registered office of the
partnership shall be the address in Niue of that partner or duly appointed attorney.
(4) Every such application shall contain a several guarantee from the
partners in prescribed form to all creditors of the partnership limited to such sum
as the partners shall nominate, being not less than $250 in it per partner.
(5) A deed or written Agreement of Partnership shall accompany every
such application and shall be stamped by the Registrar with a registration number
when the application is accepted in proper form and the prescribed fee is paid.
(6) Upon stamping of the deed or written Agreement of Partnership under
subsection (5) the Registrar shall return the deed or written Agreement of
Partnership to the registered office of the partnership and shall register that
partnership upon a Register of limited liability partnerships kept for that purpose
and issue a certificate of registration in the prescribed form.
(7) A limited liability partnership is deemed to be registered under this
section from the date upon which the deed or written Agreement of Partnership
is stamped under subsection (5), and the date of registration specified in the
certificate of registration issued under subsection (6) shall be that date.
(8) A partnership shall not be deemed to be formed as a limited liability
partnership until it is registered under this section or with section 13.
13 Annual certificates of registration
(1) A certificate of registration issued under section 12(6) shall be valid
and effective for one year from the date of registration specified in that certificate.
(2) Application for renewal of registration may be made upon filing with
the Registrar an application for renewal of registration on a form prescribed by
the Minister and payment of the prescribed fee.
(3) No application for renewal of registration under subsection (2) shall be
granted where the application is filed or fee paid after the date of expiry of the last
certificate of registration.
(4) Every renewal of registration shall be for a period of one year from the
date of expiry of the last certificate of registration.
14 Address for service
The address for service of any documents upon a limited liability
partnership shall be the registered office of that partnership.
15 Display name
Every limited liability partnership shall have its name displayed on the
outside of its registered office in a conspicuous position in letters easily legible.
Partnership Application Act 1994
1395
16 Liability for debts
(1) (a) Subject to subsection (2), in determining the extent of any liability
for the debts of a limited liability partnership the partners of a
limited liability partnership shall each be severally liable for the
debts of the partnership only to the extent of the amount nominated
by each of them in the guarantee lodged with the application
referred to in section 12 (4).
(b) Nothing in this subsection shall apply to prevent any security given
in respect of any property being enforced, nor any personal
guarantee given by any partner being sued upon.
(2) Subsection (1) shall not apply –
(a) To any debt arising from a transaction entered into by a limited
liability partnership with a person or persons resident in Niue unless
the fact that the partnership is registered as a limited liability
partnership is acknowledged in writing by the other person or
persons prior to the parties to the transaction being bound to it;
(b) To any debt existing at the date of first registration of the limited
liability partnership under section 12.
17 Power of partner to bind the partnership
Every partner of a limited liability partnership is an agent of the limited
liability partnership and the other partners in it for the purposes of the business
of the limited liability partnership, and the acts of every partner who does any act
for carrying on in the usual way business of the kind carried on by the limited
liability partnership shall, subject to section 16, bind the limited liability partnership
and the other partners in it, unless the partner so acting has in fact no authority to
act for the limited liability partnership in the particular matter, and the person
with whom the partner is dealing either knows that the partner has no authority
or does not know or believe that person to be a partner.
18 Jurisdiction
Every limited liability partnership shall be subject to the exclusive
jurisdiction of the High Court of Niue unless the partners otherwise provide at
the time of entering into binding legal relations, with third parties or with each
other, with respect to such legal relations.
19 No separate legal entity
Nothing in this Part shall be taken to alter the laws of partnership applying
to partnerships generally so as to constitute any limited liability partnership a
legal entity separate from its members, and for the avoidance of doubt a limited
liability partnership cannot sue or be sued in its own name.
20 Assignment
Unless otherwise agreed in writing by all the partners of a limited liability
partnership a partner in that partnership will not by assigning all his interest in
that partnership to another person thereby dissolve that partnership and that
partnership shall upon such an assignment occurring be deemed to have always
consisted of its present partners excepting that –
(a) Any person to whom a partnership interest has been assigned shall
be liable under the guarantee given under section 12 (4) by the
assignor (or his predecessor in title (being the person who signed
the guarantee)) and the assignor shall be released from the same;
1396 Niue Laws 2006 Vol 3
(b) The proviso to section 16 (1) shall continue to apply to both the assignor and the assignee;
(c) For the purposes of any action between the partners inter se only those partners who were partners at the time the relevant cause of action arose shall be parties to any such action.
21 Secrecy
(1) Except where this Act requires, and subject to subsection (2), it shall be
an offence for any person to divulge or communicate to any other person
information relating to the establishment, constitution, business, undertaking or
affairs of a limited liability partnership.
(2) All judicial proceedings, other than criminal proceedings, relating to
limited liability partnerships shall, unless ordered otherwise, be heard in camera
and no details of the proceedings shall be published by any person without leave
of the Court or person presiding.
(3) Notwithstanding subsection (1), an offence shall not be committed
where information is divulged or made available to the extent reasonably required
in the circumstances to any foreign government or any court or tribunal of any
country including Niue but only if and to the extent that the High Court of Niue
so directs, having been satisfied that the information is required and will be used
solely for the purposes of an investigation or prosecution of any person in relation
to the sale, or the laundering of the proceeds of sale, of any prohibited narcotic
substances, or the laundering of the proceeds gained from any other serious
criminal activity, whether that sale or laundering or other serious criminal activity
occurred in Niue or elsewhere.
(4) Nothing in this section shall prevent the High Court of Niue from
requiring any person to produce documents or to give evidence in any proceedings
of any facts relevant in such proceedings in a court in Niue.
22 Translations
(1) Every document filed with the Registrar under this Part and not in the
English language shall be accompanied by a certified translation.
(2) A document that is not in the English language and which is not
accompanied by a certified translation at the time of filing shall not be accepted
for registration by the Registrar.
(3) For the purpose of this section a certified translation is a translation
into the English language, certified as a correct translation, by a translator to the
satisfaction of the Registrar.
23 No action to lie against certain persons
Notwithstanding section 21 no action shall lie against the Government of
Niue, any statutory body or authority or a public or judicial officer in respect of
the performance of its or his functions or duties under this Part.
24 Power of exemption
(1) Cabinet may, on the advice of the Minister, on its own motion or under
an application in writing lodged with the Registrar by a limited liability partnership
or a partnership which would be a limited liability partnership if it were registered,
exempt that limited liability partnership or partnership from all or any of the
provisions of this Act and any Regulations made under this Act and may impose
such terms and conditions as it thinks fit as a condition under which that exemption
is granted.
Partnership Application Act 1994
1397
(2) Any exemption granted under subsection (1) may be revoked or varied by Cabinet, on the advice of the Minister, at any time.
(3) In dealing with an application under this section Cabinet shall not be required to act judicially and its decision shall in all cases be final.
(4) Any exemption or condition imposed under subsection (1) shall take effect as from a date to be decided by the Cabinet in its discretion.
25 Prohibitions by the Minister
(1) Cabinet shall, on the advice of the Minister, have an absolute right and
without assigning reasons to make an order –
(a) Prohibiting the registration of any partnership as a limited liability
partnership; or
(b) Directing any limited liability partnership to cease carrying on its
business or part of its business immediately or within such time as
may be specified in the order.
(2) Any order made under this section may be revoked or varied by the
Cabinet, on the advice of the Minister.
(3) In making an order under this section the Cabinet shall not be required
to act judicially and such order shall be final.
1398 Niue Laws 2006 Vol 3
1399
PENSIONS AND BENEFITS ACT 1991
1991/157 – 1 October 1991
|
1 |
Short title |
12 |
Provision for welfare benefit | |||||
|
2 |
Interpretation |
13 |
Rate of welfare benefit | |||||
|
PART 1 |
PART 3 | |||||||
|
PENSIONS |
GENERAL PROVISIONS | |||||||
|
3 |
Entitlement to a pension |
14 |
Moneys payable out of the Government | |||||
|
4 |
Rate of pension |
Account | ||||||
|
15 |
Payment of pension or welfare benefit in | |||||||
|
PART 2 |
special circumstances | |||||||
|
WELFARE BENEFITS |
16 |
Recovery of payments in excess | ||||||
|
5 |
Welfare Committee |
17 |
Offences | |||||
|
6 |
Meetings of Committee |
18 |
Taxation | |||||
|
7 |
Delegation of powers of Committee |
19 |
Regulations | |||||
|
8 |
Application for welfare benefit |
20-21 [Spent] | ||||||
|
9 |
Investigation of applications | |||||||
|
10 |
Criteria for receipt of welfare benefit |
SCHEDULE | ||||||
|
11 |
Maintenance |
To consolidate and amend the law relating to the provision of pensions and benefits in Niue
1 Short title
This is the Pensions and Benefits Act 1991.
2 Interpretation
In this Act –
“Committee” means the Welfare Committee established by section 5;
“destitute person” and “infirm person” means any person who is unable
to support himself by his own means or labour, and includes persons
with dependents where such dependants are unable through infirmity
or age to support themselves by their own means or labour;
“Director” means the Director of Community Affairs;
“permanent resident” means any person who has been granted permanent
resident status under section 6 of the Entry, Residence and Departure
Act 1985.
1400 Niue Laws 2006 Vol 3
3 Entitlement to a pension
(1) Every person who is –
PART 1
PENSIONS
(a) Of the age of 60 years or more; and
(b) Every Niuean and permanent resident in Niue and has been so
resident for not less than 6 months immediately preceding the date
on which the application is made;
shall, on application to the Director, be entitled subject to this Act, to receive a
pension.
(1A) Notwithstanding subsection (1), every person who is –
(a) Of the age of 55 years; and
(b) Either a Niuean or permanent resident in Niue and has been so
resident for not less than 10 years immediately preceding the date
on which application is made,
shall on application to the Director, be entitled subject to this Act to receive half of
the fortnightly pension entitlement until reaching the age of 60 years.
(2) For the purposes of this section, residence in Niue shall be deemed not
to have been interrupted in any case where such interruption was due to absence
for –
(a) The purpose of the applicant undergoing medical or surgical treatment for a period not exceeding 6 months, and the Director is satisfied that there was good and sufficient reason for leaving Niue to obtain that treatment;
(b) The purpose of undertaking a course of education or training; (c) Service overseas by the applicant for the Government of Niue.
(3) Notwithstanding subsection (1), every person who is in receipt of a
pension shall, upon being absent from Niue for any period in excess of 3 months,
cease to be entitled to receive a pension, but shall on returning to take up residence
in Niue, be entitled to re-apply for, and receive a pension.
(4) The payment of a pension shall cease immediately on the death of the
recipient.
(5) A recipient can only be entitled to one pension, funded either locally or
from overseas, but not both.
4 Rate of pension
The rate of pension payable shall be prescribed by Cabinet.
5 Welfare Committee
PART 2
WELFARE BENEFITS
(1) For the purposes of this Part there shall be a committee called the Welfare
Committee.
(2) The Committee shall consist of –
(a) The Director;
(b) The Director of Health; and
(c) A person appointed by and at the pleasure of Cabinet.
(3) The Director shall be Chairman of the Committee and shall preside at
all meetings at which he is present.
(4) In the absence of the Chairman the Director of Health shall act as
Chairman.
Pensions and Benefits Act 1991
1401
(5) At any meeting of the Committee the Chairman or as the case may be the acting chairman shall have a deliberative vote and in the case of an equality of votes shall also have a casting vote.
6 Meetings of Committee
(1) The Committee shall sit at such times and places as it may determine.
(2) At any meeting of the Committee 2 members shall form a quorum.
7 Delegation of powers of Committee
(1) The Committee may either generally or particularly delegate to the
Director, such of its powers as the Committee determines.
(2) Subject to this section and to any general or special directions given or
conditions attached by the Committee, the Director to whom any powers are
delegated under this section may exercise those powers in the same manner and
with the same effect as if they had been conferred on the Director directly by this
section.
(3) Every person purporting to act under any delegation under this section
shall be presumed to be acting under the terms of the delegation in the absence of
proof of the contrary.
(4) Any delegation under this section may at any time be revoked by the
Committee in whole or in part, and no such delegation shall prevent the exercise
of any power by the Committee.
8 Application for welfare benefit
Every person who has been ordinarily resident in Niue for not less than 10
years immediately preceding the date of the application, and who is a destitute
person or an infirm person, may apply in writing to the Committee for a welfare
benefit.
9 Investigation of applications
(1) The Director shall cause every application for a welfare benefit to be
investigated and a report on it to be made to the Committee for deliberation and
decision.
(2) It shall be the duty of every person to answer all questions put by or on
behalf of the Director in connection with an application.
10 Criteria for receipt of welfare benefit
(1) On receipt of an application for a welfare benefit, and the report required
to be furnished under section 9(1), the Committee shall as soon as practicable
consider the application, taking into account such matters as the Committee thinks
fit, including –
(a) The financial circumstances of the applicant;
(b) The health of the applicant;
(c) Such other matters as may be prescribed by Cabinet.
(2) On receipt of an application for a welfare benefit, the Committee shall,
in addition to the matters set out in subsection (1), consider the possibility of
rehabilitating the applicant, or of assisting the applicant to find employment, or
undergoing medical treatment, or counselling.
(3) Any applicant who without reasonable excuse refuses to act on any
advice or counselling given to him by the Committee consequent upon any matters
considered by the Committee under subsection (2), shall not be entitled to receive
a welfare benefit or, if he is already in receipt of such a benefit, such benefit may
be reduced, or terminated forthwith by the Committee.
1402 Niue Laws 2006 Vol 3
11 Maintenance
In considering any application for a welfare benefit the Committee shall, in
addition to the matters set forth in section 10, have regard to Part 23 of the Niue
Act 1966, and may refuse to grant any welfare benefit to an applicant if the
Committee is satisfied that proceedings on behalf of the applicant should first be
taken to recover maintenance under that Part, and the Director is hereby
empowered in the name of the applicant to make application to the Court and to
prosecute any application which may be made or instituted by any other person
under section 549 of the Niue Act 1966.
12 Provision for welfare benefit
(1) On approval of any application the Committee shall in the first instance,
approve the payment of a welfare benefit for a period not exceeding 6 months.
(2) On the expiry of 6 months, or such shorter period for which the payment
of a welfare benefit may have been approved in the first instance, application for
continuation of the benefit for a further period not exceeding 6 months may be
made by the recipient in the same manner as the original application.
(3) After 2 successive successful applications by the recipient of a benefit,
the Committee may grant a benefit for longer periods not exceeding one year on
such terms as it may decide.
(4) A welfare benefit shall be paid in such amount, not exceeding the
maximum rate of benefit payable prescribed under section 13, as the Committee
may determine.
(5) Payment of a welfare benefit under any grant shall cease immediately
on –
(a) The death of the recipient;
(b) The circumstances which entitled the recipient to a welfare benefit
ceasing to exist;
(c) The recipient being absent from Niue for any period in excess of 3
months, provided that such recipient may, on returning to take up
residence in Niue, reapply for a welfare benefit.
(6) A welfare benefit shall be paid at such intervals, and upon such terms
and conditions as the Committee may decide.
13 Rate of welfare benefit
The maximum rate of welfare benefit payable shall be prescribed by Cabinet.
PART 3
GENERAL PROVISIONS
14 Money payable out of the Government Account
There shall be paid out of the Niue Government Account from money
appropriated by the Assembly for the purpose –
(a) All money required to be expended in providing pensions or welfare
benefits under Part 1 and Part 2; and
(b) All other money that may be appropriated by the Assembly for the
purposes of Part 1 and Part 2, or that may be appropriated for any
purpose incidental or related to the purposes of Part 1 and Part 2.
Pensions and Benefits Act 1991
1403
15 Payment of pension or welfare benefit in special circumstances
Notwithstanding any other provision in this Act, Cabinet may approve the
payment of a pension or of a welfare benefit to any person who is ordinarily
resident in Niue and who would not otherwise qualify under this Act for the
payment to him of a pension or welfare benefit where –
(a) In the case of a pension, Cabinet is satisfied that the person to whom
the pension is to be paid is of the age of 60 years or more;
(b) In the case of a welfare benefit, Cabinet is satisfied that the person
to whom the benefit is to be paid is a destitute or infirm person;
and in either case, Cabinet is satisfied on the merits of the case that special
circumstances exist to warrant such payment.
16 Recovery of payments in excess
If any pension or welfare benefit, or instalment of it, or any money is paid
to any person under this Act in excess of the amount which ought to have been
paid to such person, the excess so paid may be –
(a) Recovered by the Director as a debt due to the Crown; or
(b) Recovered by the Director by any necessary adjustment to or
deduction from any instalments of the same or any other pension
or welfare benefit being paid to that person;
(c) Deducted by the Financial Secretary from any other money of
whatsoever kind payable or due from the Government to that
person.
17 Offences
Every person commits an offence and shall be liable on conviction to a fine
not exceeding 2 penalty units or to imprisonment for a term not exceeding 3 months
who –
(a) For the purpose of obtaining any pension or welfare benefit under this Act for himself or for any other person, makes any false statement to, or otherwise misleads or attempts to mislead any officer concerned in the administration of this Act, or any other person whomsoever;
(b) Being a person engaged in the administration of this Act, demands or receives from an applicant for a pension or a welfare benefit or any other person, any fee or other consideration for procuring or attempting to procure any pension or welfare benefit.
18 Taxation
No person shall be liable for income tax in respect of a pension or a welfare
benefit paid under this Act.
19 Regulations
(1) Cabinet may make regulations providing for such matters as are
contemplated by or necessary for giving full effect to this Act and for the due
administration of it.
(2) Regulations made under this section may provide for offences against
such regulations punishable by a term of imprisonment not exceeding 3 months
or a fine not exceeding 2 penalty units or both.
20-21 [Spent]
1404 Niue Laws 2006 Vol 3
1405
PESTICIDES ACT 1991
1991/158 – 1 October 1991
|
1 |
Short title |
|
2 |
Interpretation |
|
3 |
Power to declare substances to be |
|
pesticides | |
|
4 |
Pesticides Committee |
|
5 |
Functions and powers of Committee |
|
6 |
Exemptions |
|
7 |
Importation of pesticides |
|
8 |
Application for permit to import pesticide |
|
9 |
Sale and distribution of pesticides |
To regulate the importation and sale of pesticides
1 Short title
This is the Pesticides Act 1991.
2 Interpretation
In this Act –
“brand” means the trade name applied to a pesticide of any description by
the manufacturer, importer, seller or distributor;
“Committee” means the Pesticides Committee established under section
4;
“container” includes anything in or by which pesticides may be cased,
covered, enclosed, contained or packed;
“Director” means the Director of Agriculture, Forestry and Fisheries or such
other person as (being an officer of the Department of Agriculture
Forestry and Fisheries) to whom the functions of the Director under
this Act may for the time being have been delegated by the Director;
“label” means any written, printed or graphic matter on, attached to, the
pesticide or the container of it and the outside container of the retail
package of the pesticide;
“Minister” means the Minister for the time being responsible for agriculture;
“permit to import” means a permit issued under section 8;
“permit to sell” means a permit issued under section 10;
“pest” means any form of plant or animal life or any pathogenic agent
injurious or potentially injurious to plant or animal life and includes
any public health pest, but does not include any such pest living on or
in humans;
1406 Niue Laws 2006 Vol 3
“pesticide” means –
(i) any substance or mixture of substances used for preventing,
destroying or controlling any pest, including vectors or human
and animal disease, unwanted species of plants or animals
causing harm during or otherwise interfering with production,
processing, storage, transport or marketing of food agricultural
commodities, wood and wood products or animal foodstuffs;
or which may be administered to animals for the control of
insects, arachnids or other pests in or on their bodies; and
(ii) includes substances or mixture of substances intended for use
as a plant growth regulator, defoliant, desiccant or agent for
thinning fruit or preventing the premature fall of fruit and
substances applied to crops either before or after harvest to
protect the commodity from deterioration during storage and
transport;
(iii) includes any substance or mixture of substances declared by
Cabinet under section 3 to be a pesticide.
3 Power to declare substances to be pesticides
(1) Cabinet may on the recommendation of the Committee declare any
substance or mixture of substances to be a pesticide for the purposes of this Act
and in the like manner, may revoke such declaration.
(2) Any such declaration may relate to any substance or mixture specified
by its common name or brand, or to any class of substances or mixture identified
by a description of that class.
(3) Any such substance or mixture or class of substances or mixtures may
be identified by reference to its toxicological action, its use, or its intended purpose.
4 Pesticides Committee
(1) For the purposes of this Act there shall be constituted a committee to
be called the Pesticides Committee.
(2) The Committee shall consist of –
(a) The Director who shall be Chairman of the Committee;
(b) The Director of Health;
(c) One person appointed by and to hold office at the pleasure of
Cabinet, who shall be a person who in the opinion of Cabinet,
represents the interests of pesticide importers and sellers;
(d) One person appointed by and to hold office at the pleasure of
Cabinet, who shall be a person who in the opinion of Cabinet,
represents the interests of pesticide users.
(3) The Committee shall meet when required by the Minister or the
Chairman but in any event not less than 4 times in every year.
(4) Subject to this Act the Committee may regulate its own procedure as it
thinks fit, including the appointment of technical advisers and temporary members.
(5) The Chairman at any meeting of the Committee shall have a casting
vote as well as a deliberative vote.
5 Functions and powers of the Committee
The Committee shall have all the functions and powers necessary for the
administration of this Act, including the function and power to –
(a) Assess and evaluate every application made under this Act for the
importation or sale of a pesticide;
Pesticides Act 1991 1407
(b) Determine in its discretion the conditions relating to the importation or sale of any pesticide;
(c) Suspend or revoke subject to this Act, any permit issued under this
Act;
(d) Promote the efficient, prudent and safe use of pesticides by the
public generally;
(e) Advise Cabinet and the Minister on pesticide-related matters.
6 Exemptions
Notwithstanding any other provision of this Act, Cabinet may, on the
recommendation of the Committee, exempt any pesticide from one or more of the
provisions of this Act and may in like manner revoke any such exemption.
7 Importation of pesticides
No person shall import into Niue any pesticide, except under the terms
and conditions of a permit issued under section 8.
8 Application for permit to import pesticide
(1) Every application to import a pesticide shall be lodged with the Director
in writing.
(2) Every application made under this section shall state full particulars of
–
(a) The name and address of the applicant and the name and address
of the manufacturer or distributor of the pesticide;
(b) The brand name and percentage by weight or volume of every active
ingredient contained in the pesticide;
(c) The nature and formulation of the pesticide;
(d) The labelling which it is proposed to use on the pesticide container;
(e) The purpose for which the pesticide is normally used;
(f) The storage facilities available to the applicant for the keeping of
the pesticide.
(3) On receipt of an application for importation of a pesticide, the Director
shall refer the application to the Committee who shall –
(a) Approve the application either wholly or in part, and either with
or without such conditions as the Committee thinks fit; or
(b) Defer the application until further relevant information required
by the Committee is provided; or
(c) Decline the application.
(4) Without limiting the generality of the conditions which the Committee
may impose under subsection (3)(a) the Committee may, when approving an
application for the importation of a pesticide impose conditions relating to –
(a) The quantity of any pesticide which may be imported pursuant to
the permit;
(b) The period of time for which the permit shall remain valid, being
in any event not longer than 2 years;
(c) The methods to be used when handling the pesticide;
(d) The premises where the pesticide is to be stored, including the type
and condition of those premises, the extent and type of security
measures which will be taken, and whether any other type of goods
will be stored in or about those same premises.
(5) Every permit issued under this section shall be in writing under the
hand of the Director, and shall be in such form as the Committee may approve.
1408 Niue Laws 2006 Vol 3
9 Sale and distribution of pesticides
No person shall sell or distribute in Niue, any pesticide to any other person,
except under the terms and conditions of a permit issued under section 10.
10 Application for permit to sell or distribute pesticide
(1) Every application to sell or distribute a pesticide shall be lodged with
the Director in writing.
(2) Every application made under this section shall state full particulars of
–
(a) The name and address of the applicant;
(b) The brand name of the pesticide which the applicant proposes to
sell;
(c) Whether or not the applicant is the importer of the pesticide, and if
not, the person from whom the pesticide is to be obtained;
(d) The premises where the pesticide will be stored, including the type
and condition of those premises, the extent and type of security
measures which will be taken, and the storage of the pesticide in
relation to the proximity of other types of goods;
(e) The label to be affixed to any container containing the pesticide;
(f) The purpose for which the pesticide is normally used.
(3) On receipt of an application to sell or distribute a pesticide, the Director
shall refer the application to the Committee, who shall –
(a) Approve the application either wholly or in part, and either with
or without such conditions as the Committee thinks fit; or
(b) Defer the application until further relevant information required
by the Committee is provided; or
(c) Decline the application.
(4) Without limiting the generality of the conditions which the Committee
may impose under subsection (3)(a), the Committee may, when approving an
application to sell or distribute a pesticide impose conditions relating to –
(a) The period of time for which the permit shall remain valid, being
in any event not longer than 2 years;
(b) The methods to be used when handling the pesticide;
(c) The premises where the pesticide is to be stored, including the type
and condition of those premises, the extent and type of security
measures which are to be taken and the storage of the pesticide in
relation to the proximity of other types of goods;
(d) The label which is to be affixed on any container containing the
pesticide.
(5) Every permit issued under this section shall be in writing under the
hand of the Director, and shall be in such form as the Committee may approve.
11 Register of importers and sellers of pesticides
(1) The Director shall keep and maintain a register of all persons who have
been issued with a permit to import or a permit to sell.
(2) The register required to be kept and maintained under subsection (1)
shall include –
(a) The name and address of the permit-holder;
(b) The date on which the permit was issued by the Committee and
the date of its expiry;
(c) The brand name of the pesticide approved under the permit;
(d) The purpose for which the pesticide is ordinarily used;
Pesticides Act 1991 1409
(e) Any conditions which the Committee may have imposed in respect of the permit;
(f) Such further particulars as the Committee may require to be kept.
12 Customs not to release pesticides
The Revenue Manager shall not release any pesticide to any person
importing a pesticide unless the Revenue Manager is first satisfied that the importer
of the pesticide is the holder of a current permit to import in respect of that pesticide.
13 Revocation and suspension of permits
Notwithstanding the period of time for which any permit may have been
issued under section 8 or section 10, the Committee may, after giving the holder
of the permit a reasonable opportunity to be heard in relation to the matter –
(a) Revoke any permit where the holder of the permit has been
convicted of any offence under this Act; or
(b) Suspend any permit where a prosecution is pending in the Court
against the holder of the permit and the Committee is satisfied that
having regard to all the circumstances, the continued importation
or selling (as the case may be) of any pesticide under that permit
constitutes a danger to the health or safety of any person;
(c) Suspend or revoke any permit when facts not known to the
Committee at the time the permit was issued subsequently come to
the attention of the Committee, and the Committee is satisfied on
the basis of such facts that the continued importation or sale (as the
case may be) of that pesticide would give rise during normal use to
an unacceptable hazard to any person, any animal, or to the
environment.
14 Search and seizure
Where the Director has reasonable cause to suspect that an offence has been
or is about to be committed against this Act or any regulations made under this
Act, the Director or any person acting under the authority of the Director may,
during usual business hours and in the presence of a constable, without warrant
enter any premises and search them, and may –
(a) Seize or take samples of and remove any substance which the
Director has reasonable cause to suspect is a pesticide;
(b) Seize or take samples of and remove any document, container, or
other thing whatsoever which the Director has reasonable cause to
believe may be required as evidence for the purpose of proceedings
in respect of any such offence.
15 Offences and penalties
(1) Every person who –
(a) Imports a pesticide without first obtaining a permit under section
8, or
(b) Being the holder of a permit to import, imports a pesticide in
contravention of any condition attaching to such permit; or
(c) Sells or distributes any pesticide without first obtaining a permit
under section 10; or
(d) Being the holder of a permit to sell, sells or distributes any pesticide
in contravention of any condition attaching to such permit;
commits an offence and shall be liable on conviction to a fine not exceeding 2
1410
Niue Laws 2006 Vol 3
penalty units for a first offence, and not exceeding 10 penalty units for a second or subsequent offence.
(2) Where any person is convicted of any offence under subsection (1), the Court may, in addition to the penalty prescribed under subsection (1), order that any pesticide in respect of which the offence has been committed shall be forfeited to the Crown, or disposed of in such other manner as the Court, after hearing submissions in relation to the matter, may direct.
16 Regulations
(1) Cabinet may make regulations for the purpose of carrying out this Act.
(2) Without limiting the generality of subsection (1), Cabinet may make
regulations prescribing –
(a) The form to be used for any application under section 8 or section
10 and the form of any permit which may be issued under those
sections;
(b) The fees to be paid in respect of any application under section 8 or
section 10 and for the issue of any permit under those sections;
(c) The terms and conditions subject to which any permit under section
8 or section 10 may be issued;
(d) Minimum standards to be observed by the holder of a permit to
import or a permit to sell in relation to the storage or handling of
any pesticide;
(e) Minimum standards to be observed by any user of any pesticide,
whether or not such users hold a permit to import or a permit to
sell under this Act;
(f) Offences for the non-observance or breach of any such regulations,
and penalties not exceeding a fine of 2 penalty units.
1411
PIG CONTROL ACT 1998
1998/231 – 5 June 1998
|
1 |
Short title |
10 |
Constable may destroy a pig suffering from |
|
2 |
Interpretation |
injury | |
|
3 |
Owner of pig must not allow the pig to |
11 |
Power of entry |
|
wander at large |
12 |
Power of constable to request information | |
|
4 |
Owner of pig to ensure that its enclosure is |
13 |
Wilful obstruction of constable |
|
not a nuisance |
14 |
Court may order convicted person to pay | |
|
5 |
Owner of pig to ensure that the pig has |
compensation | |
|
sufficient food and water |
15 |
Owner liable for damage done by a pig | |
|
6 |
Owner of pig found wandering to |
wandering at large | |
|
recapture pig |
16 |
Indemnity | |
|
7 |
Owner of land may capture and destroy pig |
17 |
Compensation not payable for destruction |
|
wandering on land |
of pig | ||
|
8 |
Constable may be requested to capture wandering pig |
18 |
Regulations |
|
9 |
Constable may destroy or capture pig | ||
|
found wandering at large |
1 Short title
This is the Pig Control Act 1998.
2 Interpretation
In this Act –
“Chief of Police” includes a person for the time being carrying out the
duties of the Chief of Police;
“owner”, in respect of a pig or land, includes a person for the time being
having responsibility for the pig or land, and, in the case of land, also
includes any person who has an interest in the land.
3 Owner of pig must not allow the pig to wander at large
(1) The owner of a pig must ensure that the pig is –
(a) Kept in an enclosure; or
(b) Tethered,
in such a way that it cannot wander at large.
Penalty: (a) Fine not exceeding 2 penalty units; or
(b) If a person is convicted of an offence under this section
within one year after being convicted of an offence under
this section – 5 penalty units.
(2) It is not a defence for a person charged with an offence under subsection
(1) for the person to prove that the pig to which the charge relates was wandering
at large on land in which that person had an interest.
1412 Niue Laws 2006 Vol 3
4 Owner of pig to ensure that its enclosure is not a nuisance
The owner of a pig must ensure that any enclosure in which the pig is kept
is kept in such a condition that the enclosure does not become a nuisance or
annoyance to any other person.
Penalty: (a) Fine not exceeding 2 penalty units;
(b) If a person is convicted of an offence under this section within
one year after being convicted of an offence under this section
– 5 penalty units.
5 Owner of pig to ensure that the pig has sufficient food and water
The owner of pig must ensure that the pig has sufficient food and water.
Penalty: Fine not exceeding 1 penalty unit.
6 Owner of pig found wandering to recapture pig
If the owner of land –
(a) Finds a pig at large on that land; and
(b) Requests the owner of the pig to remove it,
the owner of the pig must comply with that request as soon as
reasonably practicable but in any event within 24 hours of being
requested to do so.
Penalty: (a) Fine not exceeding 2 penalty units;
(b) If a person is convicted of an offence under this section
within one year after being convicted of an offence under
this section – 5 penalty units.
7 Owner of land may capture and destroy pig wandering on land
(1) If the owner of land finds a pig wandering at large on that land the
owner may –
(a) Destroy the pig; or
(b) Claim ownership of the pig,
and for either of those purposes may capture the pig.
(2) If the owner of land destroys a pig under subsection (1)(a) the carcass
of the pig is the property of that owner.
(3) If the owner of land captures and claims ownership of a pig under
subsection (1)(b) the pig becomes the property of that owner.
(4) Subsections (2) and (3) apply despite the fact that –
(a) The pig was the property of some other person before its destruction
or capture; and
(b) The owner of the land may have been aware that the pig was the
property of some other person before its destruction or capture.
8 Constable may be requested to capture wandering pig
(1) If the owner of land finds a pig wandering at large on that land the
owner may request a constable to –
(a) Destroy the pig; or
(b) Capture and remove the pig.
(2) A constable may comply with a request made under subsection (1).
(3) If a constable destroys or captures a pig in accordance with a request
made under subsection (1) the carcass of the pig or, if captured live, the pig must
be disposed of in a manner determined by the Chief of Police.
(4) The Chief of Police may determine that the carcass of the pig or the pig
Pig Control Act 1998
1413
is to be returned to the owner of the pig but is under no obligation to do so.
(5) Subsections (1) and (2) apply although before its destruction or capture –
(a) The pig was the property of some other person; and
(b) The owner of the land or the constable or both may have been aware
of that fact.
9 Constable may destroy or capture pig found wandering at large
(1) A constable may –
(a) Destroy; or
(b) Capture,
a pig found wandering at large and for either of those purposes may enter land.
(2) If a constable destroys or captures a pig under subsection (1) the carcass
of the pig or, if captured live, the pig must be disposed of in a manner determined
by the Chief of Police.
(3) The Chief of Police may determine that the carcass of the pig or the pig
is to be returned to the owner of the pig but is under no obligation to do so.
(4) Subsection (1) applies although before its destruction or capture –
(a) The pig was the property of some other person; and
(b) The constable may have been aware of that fact.
10 Constable may destroy a pig suffering from injury
(1) A constable –
(a) May destroy a pig that is apparently suffering from injury, disease
or neglect; and
(b) For that purpose, may enter the land.
(2) If a constable destroys a pig under subsection (1) the carcass of the pig
must be disposed of in a manner determined by the Chief of Police.
(3) The Chief of Police may determine that the carcass of the pig is to be
returned to the owner of the pig but is under no obligation to do so.
(4) Subsection (1) applies although before its destruction –
(a) The pig was the property of some other person; and
(b) The constable may have been aware of that fact.
11 Power of entry
If a constable has good cause to suspect that an offence against this Act is
being committed on land the constable may enter the land –
(a) To inspect –
(i) any pig for the time being appearing to be kept on that land; or
(ii) the conditions in which any such pig is being kept; and
(b) If authorised to do so under any other provision of this Act, destroy
a pig on the land.
12 Power of constable to request information
(1) A constable may for the purposes of this Act request –
(a) A person appearing to be in charge of a pig; or
(b) A person appearing to be the occupier of land on which a pig is for
the time being kept,
to state the person’s name and address; and if that person claims not to be the
owner of the pig, the name and address of the owner of the pig.
(2) A person must not –
(a) Without reasonable excuse, fail or refuse to comply with a lawful
request under subsection (1); or
1414 Niue Laws 2006 Vol 3
(b) Wilfully state a false name or address in response to such a request.
Penalty: Fine not exceeding 2 penalty units.
(3) A constable may arrest without warrant a person who –
(a) Fails or refuses to comply with a lawful request under subsection
(1); or
(b) In the opinion of the constable, has stated a false name or address
in response to such a request.
13 Wilful obstruction of constable
(1) A person must not wilfully obstruct or hinder a constable in the exercise
of the constable’s powers under this Act.
Penalty: Fine not exceeding 2 penalty units.
(2) A constable may arrest without warrant a person who wilfully obstructs
or hinders the constable in the exercise of the constable’s powers under this Act.
14 Court may order convicted person to pay compensation
(1) If the Court –
(a) Has convicted a person of an offence under this Act in respect of a
pig wandering at large on the land of another person; and
(b) Is satisfied that the pig caused damage on the land of that other
person, the Court may –
inquire into the extent of that damage; and in addition to any other penalty it
imposes in respect of the offence or in substitution for any such penalty order the
person convicted of the offence to pay to the owner of the land such amount as
the Court considers is fair compensation for the damage caused by the pig.
(2) If the Court orders a person to pay compensation under subsection (1)
the making of that order does not prohibit any person taking action for the recovery
of damages or additional damages.
15 Owner liable for damage done by a pig wandering at large
The owner of a pig that wanders at large is liable in damages for damage
done by the pig while wandering at large, and it is not necessary for a person
seeking damages to show –
(a) A previous propensity in the pig to wander at large; or
(b) The owner ’s knowledge of any such propensity; or
(c) That the damage was attributable to neglect on the part of the owner
of the pig.
16 Indemnity
(1) Action, civil or criminal, does not lie against the Government, the Chief
of Police, a constable or any other person in respect of –
(a) The destruction or capture of a pig or the disposal of a pig or the
carcass of a pig under this Act; or
(b) The attempted destruction or capture of a pig under this Act if the
pig is wounded or maimed instead of being so destroyed or
captured.
(2) Subsection (1)(b) does not apply if unnecessary suffering is caused to a
pig.
17 Compensation not payable for destruction of pig
The owner of a pig has no right to compensation in respect of a pig destroyed
or captured or disposed of under this Act.
Pig Control Act 1998
1415
18 Regulations
(1) Cabinet may make regulations necessary or convenient for the purposes
of this Act.
(2) Regulations made under subsection (1) may, in particular –
(a) Provide for the registration of pigs;
(b) Provide for the imposition of fees for the registration of pigs;
(c) Provide for pigs to be distinguishable as the property of an
ascertainable person by the wearing of tags or collars, or by branding
or earmarks, or by any similar means;
(d) Provide for the registration of the owners of pigs;
(e) Provide for the imposition of fees for the registration of owners of
pigs;
(f) Prescribe the manner in which enclosures for pigs are to be
constructed;
(g) Prohibit or regulate where the enclosures for pigs may be placed;
(h) Provide for the imposition of fines not exceeding 5 penalty units
for a failure to comply with any provision of the regulations; and
(i) Provide for the remission of fees in whole or in part in cases of
hardship.
(3) The Cabinet may exempt a person from compliance with any provision
of a regulation made under this section if the Cabinet is satisfied that compliance
with the regulation would cause the person undue hardship.
(4) An exemption given under subsection (3) may be given subject to
conditions and is of no effect unless those conditions are complied with.
1416 Niue Laws 2006 Vol 3
1417
PRICE CONTROL ON IMPORTED GOODS FOR RESALE IN NIUE ACT 1975
1975/5 – 13 February 1975
|
1 |
Short title |
8 |
Keeping of records |
|
2 |
Interpretation |
9 |
Penalties |
|
3 |
Administration |
10 |
Vicarious responsibility |
|
4 |
Price Control Board |
11 |
Regulations |
|
5 |
Delegation of powers |
12 |
[Spent] |
|
6 |
Price orders | ||
|
7 |
Obtaining information |
To consolidate and amend the law relating to the control of prices on imported goods for resale in Niue
1 Short title
This is the Price Control on Imported Goods for Resale in Niue Act 1975.
2 Interpretation
In this Act –
“Board” means the Price Control Board;
“goods” shall include merchandise, articles, things and commodities, but
shall not include any liquor within the meaning of the Liquor Act 1975;
“Minister” means the Minister of Customs Shipping and Trade;
“price” when used in connection with the sale of any goods or the
performance of any services, includes every valuable consideration
whatsoever, whether direct or indirect;
“retail price” means the price paid or payable for goods sold on retail to a
consumer;
“service” includes any service supplied for hire or reward by any person
engaged in trade or business;
“trader” means any person who in connection with business carried on by
him, sells or proposes to sell any goods, or who supplies or carries on
any service;
“wholesale” means the sale or supply of goods to a person for the purpose
of resale or for use by such person in his trade or business.
3 Administration
(1) There is hereby constituted a Price Control section of the Customs
Department, which shall be under the immediate control of an officer of the Public
Service called the Price Control Officer.
(2) The office of the Price Control Officer may be held in conjunction with
any other office which the Public Service Commission shall consider to be not
incompatible with it.
(3) This Act shall be administered by the Price Control section under the
control of the Minister.
1418 Niue Laws 2006 Vol 3
4 Price Control Board
(1) For the purpose of this Act there is hereby established a Board to be
known as the Price Control Board, consisting of –
(a) A Chairman, and
(b) Not less than 2, nor more than 4 other persons,
to be appointed by Cabinet.
(2) Every member of the Board shall hold office for 3 years, but may sooner
resign by notice in writing to the Minister, or be removed by Cabinet for disability,
misconduct, or neglect of duty proved to the satisfaction of Cabinet.
(3) Of the members appointed under subsection (1)(b), one shall be a person
whom Cabinet considers representative of merchants and traders carrying on
business in Niue, and one shall be a person whom Cabinet considers representative
of consumers in Niue.
5 Delegation of powers
(1) With the written consent of the Minister, the Board may delegate to the
Price Control Officer all or any of the powers exercisable by it under this Act,
including the powers to make price orders and to institute proceedings.
(2) Any person affected by any order of the Price Control Officer acting
pursuant to a delegation under this section may at any time appeal therefrom to
the Board by giving to the Minister a written notice of appeal.
(3) The Board may determine any appeal under this section in such manner
as it thinks fit.
6 Price orders
(1) If the Board considers it expedient in the public interest to control the
price of any goods or services, it may make price orders fixing the maximum or
minimum or actual price of such goods or services, either generally throughout
Niue or in any specified part of or place in Niue.
(2) Any price order may relate to the sale of goods either at wholesale or
retail prices.
(3) Any price order may contain such incidental and supplementary
provisions as are necessary or expedient.
(4) (a) The Board may at any time revoke or amend any price order.
(b) The Board shall not increase the price of any goods as fixed by any
price order, more than once in any 3 month period.
(5) The decision of the Board shall be final and shall not be subject to any
right of appeal.
(6) Every price order shall be published in the Niuean and English
languages in one or more newspapers or published in such other manner as the
Board shall consider sufficient, and no price order shall come into force before it
has been so published.
(7) It shall be the duty of every trader whose business includes the sale of
any goods or the performance of any services to which a current price order made
under this Act applies, to keep displayed in a prominent position on the premises
in which the sale of such goods or the performance of such services are offered, a
list showing clearly for the information of the public the price fixed in respect of
such goods or services.
(8) The Price Control Officer may cause lists to be printed in the Niuean or
English language or both and may require the trader to exhibit the same in the
manner aforesaid.
Price Control on Imported Goods Act 1975 1419
(9) The Price Control Officer may with regard to any specified goods require that any retailer having such goods for sale shall cause the same to be legibly and conspicuously marked with the selling price for the information of the public.
(10) Nothing in this section shall be construed to affect the exercise by any person or authority having statutory powers to fix prices, fares or charges under any other enactment.
7 Obtaining information
(1) For the purposes of this Act, any member of the Board, or the Price
Control Officer, or any other officer lawfully delegated by the Board may –
(a) Require any trader to supply him either orally or in writing with
any information in his possession relating to goods or services;
(b) By notice published in a newspaper to require any traders or
specified class of traders to render returns setting forth such
particulars regarding the sale or performance of services as may be
specified in the notice;
(c) Require any trader to produce for inspection any records, accounts,
or documents relating to the sale of goods or supply of services,
and to furnish copies of them;
(d) During business hours, to inspect all books of account and records
of any trader, and to make copies or extracts;
(e) Take possession of any documents or papers which appear to him
to constitute prima facie evidence of breach of a price order.
(2) No person shall –
(a) Obstruct any officer or person in the lawful exercise of his powers
under this section;
(b) Wilfully fail to give any information or to produce any record,
account or document lawfully required of him under this section;
(c) Knowingly give any false information relating to goods and services
to any such person.
8 Keeping of records
Every trader shall keep such records and accounts, including stock and
costing records, as are customary and proper in the type of business carried on by
him and shall retain such records and accounts for a period of 5 years after they
come into being.
9 Penalties
(1) Any person who sells or offers for sale any goods or services in breach
of any relevant price order, or fails to comply with this Act or any order, notice,
direction or requirement lawfully made or published thereunder shall be guilty
of an offence and shall be liable on conviction to a fine not exceeding 5 penalty
units or to imprisonment for a term not exceeding 6 months or to both.
(2) Where a company is charged with an offence under this Act, every
person who at the time of the commission of the offence was a director or officer
of the company may be charged jointly in the same proceedings with such
company, and where the company is convicted of the offence, every such director
or officer shall be deemed to be guilty of that offence unless he satisfies the Court
that the offence was committed without his knowledge and that he exercised all
due diligence to prevent the commission of the offence.
(3) Proceedings against a director of a company under subsection (2) shall
not be instituted except on the direction of the Board.
1420 Niue Laws 2006 Vol 3
10 Vicarious responsibility
Any trader who engages any employee shall be answerable for the acts or
omissions of his employee in so far as they concern the business of such trader,
and if such employee commits any act or makes any omission which is an offence
or would be an offence if made or committed by such employer, then and in such
case both the employer and the employee or either of them may be charged with
such offence.
11 Regulations
Cabinet may make such regulations as it thinks fit for the purposes of this
Act.
12 [Spent]
1421
PROCEEDS OF CRIME ACT 1998
1998/245 – 16 December 1998
24 Court may lift corporate veil
25 Enforcement of confiscation orders
26 Amounts paid in respect of registered
foreign confiscation orders
FORFEITURE ORDERS, CONFISCATION ORDERS AND
RELATED MATTERS
General
6 Application for forfeiture order or
confiscation order on conviction
7 Notice of application
8 Amendment of application
9 Procedure on application
10 Application for forfeiture order where
person has absconded
Forfeiture Orders
11 Forfeiture order on conviction
12 Effect of forfeiture order
13 Protection of third parties
14 Discharge of forfeiture order on appeal and
quashing of conviction
15 Payment instead of forfeiture order
16 Enforcement of order for payment instead
of forfeiture
17 Forfeiture order where person has
absconded
18 Registered foreign forfeiture orders
Confiscation Orders
19 Confiscation order on conviction
20 Rules for determining and assessing value
21 Statements relating to benefits from
commission of serious offences
22 Amount to be recovered under confiscation
order
23 Variations of confiscation orders
PART 3
PROVISION FOR FACILITATING POLICE INVESTIGATIONS
AND PRESERVING PROPERTY LIABLE TO FORFEITURE
AND CONFISCATION ORDERS
Powers of Search and Seizure
27 Warrant to search land for tainted property
28 Police may seize other tainted property
29 Return of property seized
30 Search for and seizure of tainted property
in relation to foreign offences
Restraining Orders
31 Application for restraining order
32 Restraining order
33 Undertakings by the Crown
34 Notice of application for restraining order
35 Service of restraining order
36 Further orders
37 Financial Secretary to satisfy confiscation
order
38 Registration of restraining order
39 Contravention of restraining orders
40 Court may revoke restraining orders
41 When restraining order ceases to be in force
42 Interim restraining order may be made in
respect of foreign offence
43 Registered foreign restraining orders –
general
44 Registered foreign restraining orders –
Court may direct Financial Secretary to take
custody and control of property
45 Registered foreign restraining orders –
undertakings
46 Registered foreign restraining orders – time
when order ceases to be in force
1422 Niue Laws 2006 Vol 3
Disclosure of Information Held by Government
Departments
61 Direction to disclose information
62 Further disclosure of information and
documents
63 Evidential value of copies
PART 4
OFFENCES
64 Money laundering
65 Possession of property suspected of being
proceeds of crime
66 Conduct by directors, servants or agents
PART 5
MISCELLANEOUS
67 Standard of proof
68 Costs
69 Non-liability of Financial Secretary
70 Operation of other laws not affected
71 Regulations
To provide for confiscation of the proceeds of crime, and for related purposes
1 Short title
PART 1
PRELIMINARY
This is the Proceeds of Crime Act 1998.
2 [Spent]
3 Principal objects
The principal objects of this Act are –
(a) To deprive persons of the proceeds of, and benefits derived from,
the commission of serious offences;
(b) To provide for the forfeiture of property used in, in connection with,
or for the purpose of facilitating the commission of serious offences;
(c) To enable law enforcement authorities to trace such proceeds,
benefits and property; and
(d) To make it an offence to engage in money laundering.
4 Interpretation
In this Act –
“Attorney-General” means the chief legal adviser to the Government of
Niue;
“benefit” has the same meaning as in section 5(1);
“Commissioner” means a Commissioner of the Court;
“confiscation order” means an order made by the Court under section 19(1);
Proceeds of Crime Act 1998
1423
“document”, in relation to an offence, means a written or printed thing and includes –
(a) a map, plan, graph or drawing; (b) a photograph;
(c) a disk, tape, sound track or other device in which sound or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it; and
(d) a film, negative, tape or other device in which one or more visual
images are embodied, so as to be capable (as aforesaid) of being
reproduced from it;
“foreign confiscation order” means an order made under the law of a foreign
country for a person to pay to the foreign country an amount
representing the value (or part of it) of the person’s benefits from an
offence against the law of that country;
“foreign forfeiture order” means an order, made under the law of a foreign
country, for the forfeiture of property in respect of an offence against
the law of that country;
“foreign restraining order” means an order, made under the law of a foreign
country, restraining a particular person, or all persons, from dealing
with property, being an order made in respect of an offence against the
law of that country;
“foreign serious offence” means a serious offence against the law of a foreign
country;
“forfeiture order” means an order made by the Court under section 11(1);
“gift caught by this Act”is to be construed in accordance with section 5(12)
and (14);
“interest”, in relation to property, means –
(a) a legal or equitable estate or interest in the property; or
(b) a right, power or privilege in connection with the property;
“Judge” includes a Commissioner;
“proceeds” in relation to an offence, means any property that is derived or
realised, directly or indirectly, by any person from the commission of
the offence;
“proceeds of crime” means –
(a) proceeds of a serious offence; or
(b) any property that is derived or realised, directly or indirectly, by
any person from acts or omissions that occurred outside Niue and
would, if they had occurred in Niue, have constituted a serious
offence;
“production order” means an order made by the Court under section 47;
“property” includes money and all other property, real or personal,
including things in action and other intangible or incorporeal property;
“property-tracking document”, in relation to an offence, means –
(a) a document relevant to –
(i) identifying, locating, or quantifying property of a person who
committed the offence; or
(ii) identifying or locating any document necessary for the transfer
of property of a person who committed the offence; or
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(b) a document relevant to –
(i) identifying, locating or quantifying tainted property in relation
to the offence; or
(ii) identifying or locating any document necessary for the transfer
of tainted property in relation to the offence;
“realisable property” has the same meaning as in section 5;
“relevant application period”, in relation to a person’s conviction of a serious
offence, means the period of 12 months after –
(a) where the person is to be taken to have been convicted of the offence
by reason of section 5(2)(a) – the day on which the person was
convicted of the offence;
(b) where the person is to be taken to have been convicted of the offence
by reason of section 5(2)(b) – the day on which the person was
discharged without conviction; or
(c) where the person is to be taken to have been convicted of the offence
by reason of section 5(2)(c) – the day on which the court took the
offence into account in passing sentence for the other offence
referred to in that section;
“relevant offence”, in relation to tainted property, means an offence by
reason of the commission of which the property is tainted property;
“restraining order” means an order made by the Court under section 32(1);
“serious offence” means an offence the maximum penalty for which is death,
or imprisonment for not less than 12 months;
“tainted property”, in relation to a serious offence, means –
(a) property used in, or in connection with, the commission of the
offence; or
(b) proceeds of the offence;
and when used without reference to a particular offence means tainted
property in relation to a serious offence;
“unlawful activity” means an act or omission that constitutes an offence
against a law in force in Niue or a foreign country.
Definition of certain terms
(1) In this Act –
(a) “A benefit” includes any property, service or advantage, whether
direct or indirect;
(b) “To benefit” has a corresponding meaning;
(c) A reference to a benefit derived or obtained by, or otherwise accruing
to, a person (A) includes a reference to a benefit derived or obtained
by, or otherwise accruing to, another person at A’s request or
direction.
(2) For the purposes of this Act, a person is taken to be convicted of a
serious offence if –
(a) The person is convicted, whether summarily or on indictment, of
the offence;
(b) The person is charged with, and found guilty of, the offence but is
discharged without conviction; or
(c) A court, with the consent of the person, takes the offence, of which
the person has not been found guilty, into account in passing
sentence on the person for another offence.
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(3) In this Act, “realisable property” means, subject to section 6 –
(a) Any property held by a person who has been convicted of, or
charged with, a serious offence; and
(b) Any property held by a person to whom a person so convicted or
charged has directly or indirectly made a gift caught by this Act.
(4) Property is not realisable property if –
(a) There is in force, in respect of that property, a forfeiture order under
this Act or under another enactment; or
(b) A forfeiture order is proposed to be made against that property
under this Act or another enactment.
(5) For the purposes of sections 21 and 22 the amount that might be realised
at the time a confiscation order is made against a person is the total of the values
at that time of all the realisable property held by the person less the total amounts
payable under an obligation, where there is an obligation having priority at that
time, together with the total of the values at that time of all gifts caught by this
Act.
(6) For the purposes of subsection (5), an obligation has priority at any time if it is an obligation of the person to –
(a) Pay an amount due in respect of a fine, or other order of a court, imposed or made on conviction of an offence, where the fine was imposed or the order was made before the confiscation order; or
(b) Pay an amount due in respect of any tax, rate, duty, excise or other impost payable under an enactment for the time being in force;
(c) Pay any other civil obligation as may be determined by the Court.
(7) Subject to subsections (8) and (9), for the purposes of this Act, the value
of property (other than cash), in relation to a person holding the property, is –
(a) Where any other person holds an interest in the property – the
market value of the first-mentioned person’s beneficial interest in
the property, less the amount required to discharge any
encumbrance on that interest; and
(b) In any other case – its market value.
(8) References in this Act to the value at any time (referred to in subsection
(9) as “the material time”) of the transfer of any property are references to whichever
is the greater of –
(a) The value of the property to the recipient when he or she receives
it, adjusted to take account of subsequent changes in the value of
money; or
(b) Where subsection (9) applies – the value there mentioned,
whichever is the greater.
(9) Where at the material time the recipient holds –
(a) The property which he or she received (not being cash); or
(b) Property which, in whole or in part, directly or indirectly represents
in the recipient’s hands the property which he or she received –
the value referred to in subsection (7)(b) is the value to the recipient at the material
time of the property referred to in paragraph (a) or, as the case may be, of the
property mentioned in paragraph (b), so far as it represents the property which he
or she received.
(10) Subject to subsection (14), a reference to the value at any time (referred
to in subsection (11) as “the material time”) of a gift is a reference to –
(a) The value of the gift to the recipient when he or she received it,
adjusted to take account of subsequent changes in the value of
money; or
1426 Niue Laws 2006 Vol 3
(b) Where subsection (11) applies – the value there mentioned, whichever is the greater.
(11) Subject to subsection (14), where at the material time a person holds – (a) The property which the person received, not being cash; or
(b) Property which, in whole or in part, directly or indirectly represents in the person’s hands the property which the person received,
the value referred to in subsection (10)(b) is the value to the person at the material time of the property mentioned in paragraph (a) or the value of the property mentioned in paragraph (b) so far as it so represents the property which the person received.
(12) A gift, including a gift made before the commencement of this Act, is caught by this Act where –
(a) It was made by the person convicted or charged at a time after the commission of the offence or, if more than one, the earliest of the offences to which the proceedings for the time being relate, and the Court considers it appropriate in all the circumstances to take the gift into account;
(b) It was made by the person convicted or charged at any time and
was a gift of property –
(i) Received by the person in connection with the commission of
a serious offence committed by the person or by another person;
or
(ii) Which in whole or in part directly or indirectly represented in
the person’s hands property received by the person in that
connection.
(13) The reference in subsection (12) to “an offence to which the
proceedings for the time being relate” includes, where the proceedings have
resulted in the conviction of the person, a reference to any offence that the Court
takes into consideration when determining sentence.
(14) For the purposes of this Act –
(a) The circumstances in which a person must be treated as making a
gift include those where the person transfers property to another
person directly or indirectly for a consideration the value of which
is significantly less than the value of the consideration provided or
the property transferred by the person; and
(b) In those circumstances, subsections (10), (11) and (12) shall apply
as if the person had made a gift of such share in the property as
bears to the whole property the same proportion as the difference
between the values referred to in paragraph (a) bears to the value
of the consideration provided or the property transferred by the
person.
PART 2
FORFEITURE ORDERS, CONFISCATION ORDERS AND RELATED MATTERS
General
6 Application for forfeiture order or confiscation order on conviction
(1) Subject to subsection (2), where a person is convicted of a serious offence
committed after the coming into force of this Act, the Attorney-General may apply to the Court for one or both of the following orders –
(a) A forfeiture order against property that is tainted property in respect
of the offence;
Proceeds of Crime Act 1998
1427
(b) A confiscation order against the person in respect of benefits derived by the person from the commission of the offence.
(2) The Attorney-General may not make an application after the end of the relevant application period in relation to the conviction.
(3) An application under this section may be made in respect of one or more than one serious offence.
(4) Where an application under this section is finally determined, no further application for a forfeiture order or a confiscation order may be made in respect of the offence for which the person was convicted unless the Court gives leave for the making of a new application on being satisfied –
(a) That the property or benefit to which the new application relates was identified after the previous application was determined; or
(b) That necessary evidence became available only after the previous application was determined; or
(c) That it is in the interests of justice that the new application be made.
7 Notice of application
(1) Where the Attorney-General applies for a forfeiture order against
property in respect of a person’s conviction of an offence –
(a) The Attorney-General must give written notice of the application
to the person and to any other person who the Attorney-General
has reason to believe may have an interest in the property;
(b) The person, and any other person who claims an interest in the
property, may appear and adduce evidence at the hearing of the
application; and
(c) The Court may, at any time before the final determination of the
application, direct the Attorney-General –
(i) to give notice of the application to any person who, in the
opinion of the Court, appears to have an interest in the property;
or
(ii) to publish in a newspaper published and circulating in Niue
notice of the application, in the manner and containing such
particulars and within the time that the Court considers
appropriate.
(2) Where the Attorney-General applies for a confiscation order against a
person –
(a) The Attorney-General must give the person written notice of the application; and
(b) The person may appear and adduce evidence at the hearing of the application.
8 Amendment of application
(1) The Court hearing an application under section 6(1) may, before final
determination of the application, and on the application of the Attorney-General
amend the application to include any other property or benefit, as the case may
be, upon being satisfied that –
(a) The property or benefit was not reasonably capable of identification
when the application was originally made; or
(b) Necessary evidence became available only after the application was
originally made.
(2) Where the Attorney-General applies to amend an application for a
forfeiture order and the amendment would have the effect of including additional
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property in the application for the forfeiture order the Attorney-General must give written notice of the application to amend to any person who the Attorney- General has reason to believe may have an interest in property to be included in the application for the forfeiture order.
(3) Any person who claims an interest in the property to be included in the application for the forfeiture order may appear and adduce evidence at the hearing of the application to amend.
(4) Where the Attorney-General applies to amend an application for a confiscation order against a person and the effect of the amendment would be to include an additional benefit in the application for the confiscation order the Attorney-General must give the person written notice of the application to amend.
9 Procedure on application
(1) Where an application is made to the Court for a forfeiture order or a
confiscation order in respect of a person’s conviction of an offence, the Court may,
in determining the application, have regard to the transcript of any proceedings
against the person for the offence.
(2) Where an application is made for a forfeiture order or a confiscation
order to the Court before which the person was convicted, and the Court has not,
when the application is made, passed sentence on the person for the offence, the
Court may, if it is satisfied that it is reasonable to do so in all the circumstances,
defer passing sentence until it has determined the application for the order.
10 Application for forfeiture order where person has absconded
(1) Where a person absconds in connection with a serious offence
committed, the Attorney-General may, within the period of 6 months after the
person so absconds, apply to the Court for a forfeiture order under section 17 in
respect of any tainted property.
(2) For the purposes of this section, a person shall be deemed to have
absconded in connection with an offence if –
(a) An information has been laid alleging the commission of the offence
by the person;
(b) A warrant for the arrest of the person is issued in relation to that
information; and
(c) Reasonable attempts to arrest the person pursuant to the warrant
have been unsuccessful during the period of 6 months commencing
on the day the warrant was issued,
and the person shall be deemed to have so absconded on the last day of that
period of 6 months.
(3) Where the Attorney-General applies under this section for a forfeiture
order against any tainted property the Court shall, before hearing the application –
(a) Require notice of the application to be given to any person who, in
the opinion of the Court, appears to have an interest in the property;
or
(b) Direct notice of the application to be published in a newspaper
published and circulating in Niue containing such particulars and
for so long as the Court may require.
Forfeiture Orders
11 Forfeiture order on conviction
(1) Where the Attorney-General applies to the Court for an order under
this section against property in respect of a person’s conviction of an offence and
Proceeds of Crime Act 1998
1429
the Court is satisfied that the property is tainted property in respect of the offence, the Court may order that the property, or such of the property as is specified by the Court in the order, be forfeited to the Crown.
(2) In determining whether property is tainted property the Court may
infer –
(a) Where the evidence establishes that the property was in the person’s possession at the time of, or immediately after, the commission of the offence of which the person was convicted – that the property was used in, or in connection with, the commission of the offence;
(b) Where the evidence establishes that property, and in particular money, was found in the person’s possession or under the person’s control in a building, vehicle, receptacle or place during the course of investigations conducted by the police before or after the arrest and charge of the person for the offence of which the person was convicted – that the property was derived, obtained or realised as a result of the commission by the person of the offence of which the person was convicted;
(c) Where the evidence establishes that the value, after the commission
of the offence, of all ascertainable property of a person convicted of
the offence exceeds the value of all ascertainable property of that
person prior to the commission of that offence, and the Court is
satisfied that the income of that person from sources unrelated to
criminal activity of that person cannot reasonably account for the
increase in value – that the value of the increase represents property
which was derived, obtained or realised by the person directly or
indirectly from the commission of the offence of which the person
was convicted.
(3) Where the Court orders that property, other than money, be forfeited
to the Crown, the Court shall specify in the order the amount that it considers to be the value of the property at the time when the order is made.
(4) In considering whether a forfeiture order should be made under subsection (1), the Court may have regard to –
(a) The rights and interests, if any, of third parties in the property; (b) The gravity of the offence concerned;
(c) Any hardship that may reasonably be expected to be caused to any
person by the operation of the order; and
(d) The use that is ordinarily made of the property, or the use to which
the property was intended to be put.
(5) Where the Court makes a forfeiture order, the Court may give such
directions as are necessary or convenient for giving effect to the order.
12 Effect of forfeiture order
(1) Subject to subsection (2), where the Court makes a forfeiture order
against property, the property vests absolutely in the Crown by virtue of the order. (2) Where a forfeiture order is made against registrable property –
(a) The property vests in the Crown in equity but does not vest in the Crown at law until the applicable registration requirements have been complied with;
(b) The Crown is entitled to be registered as owner of the property;
and
(c) The Attorney-General has power on behalf of the Crown to do, or
authorise the doing of, anything necessary or convenient to obtain
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the registration of the Crown as owner, including the execution of any instrument required to be executed by a person transferring an interest in property of that kind.
(3) If a forfeiture order has been made against registrable property –
(a) The Attorney-General has the power on behalf of the Crown to do
anything necessary or convenient to give notice of, or otherwise
protect, the equitable interest of the Crown in the property; and
(b) Any such action by or on behalf of the Crown is not a dealing for
the purposes of subsection (4)(a).
(4) Where the Court makes a forfeiture order against property –
(a) The property shall not, except with the leave of the Court and under
any directions of the Court, be disposed of, or otherwise dealt with,
by or on behalf of the Crown, before the relevant appeal date; and
(b) If, after the relevant appeal date, the order has not been discharged,
the property may be disposed of, and the proceeds applied or
otherwise dealt with in accordance with the direction of the
Attorney-General.
(5) Without limiting the generality of subsection (4)(b), the directions that
may be given under that paragraph include a direction that property is to be
disposed of under the provisions of an enactment specified in the direction.
(6) In this section –
“registrable property” means property the title to which is passed by
registration on a register kept under any law of Niue;
“relevant appeal date”, used in relation to a forfeiture order made in
consequence of a person’s conviction of a serious offence, means –
(a) The date on which the period allowed by the rules of court for the
lodging of an appeal against a person’s conviction, or for the lodging
of an appeal against the making of a forfeiture order, expires without
an appeal having been lodged, whichever is the later; or
(b) Where an appeal against a person’s conviction or against the making
of a forfeiture order is lodged – the date on which the appeal, or the
later appeal, lapses in accordance with the rules of court or is finally
determined.
13 Protection of third parties
(1) Where an application is made for a forfeiture order against property, a
person who claims an interest in the property may apply to the Court, before the forfeiture order is made, for an order under subsection (2).
(2) If a person applies to the Court for an order under this subsection in respect of the person’s interest in property and the Court is satisfied –
(a) That the applicant was not in any way involved in the commission
of an offence in respect of which forfeiture of the property is sought,
or the forfeiture order against the property was made; and
(b) If the applicant acquired the interest during or after the commission
of the offence – that the applicant acquired the interest –
(i) for sufficient consideration; and
(ii) without knowing, and in circumstances such as not to arouse a
reasonable suspicion, that the property was, at the time of the
acquisition, tainted property,
the Court shall make an order declaring the nature, extent and value (as at the
time when the order is made) of the applicant’s interest.
Proceeds of Crime Act 1998
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(3) Subject to subsection (4), where a forfeiture order has already been made directing the forfeiture of property, a person who claims an interest in the property may, before the end of the period of 6 months commencing on the day on which the forfeiture order is made, apply under this subsection to the Court for an order under subsection (2).
(4) A person who –
(a) Had knowledge of the application for the forfeiture order before
the order was made; or
(b) appeared at the hearing of that application,
shall not be permitted to make an application under subsection (3), except with
the leave of the Court.
(5) A person who makes an application under subsection (1) or (3) must
give written notice of the making of the application to the Attorney-General, who
shall be a party of any proceedings in the application.
(6) An applicant or the Attorney-General may, under the rules of court,
appeal to the Court of Appeal from an order made under subsection (2).
(7) The Cabinet shall, on application by any person who has obtained an
order under subsection (2), and where the period allowed by the rules of court
with respect to the making of appeals has expired and any appeal from that order
taken under subsection (6) has been determined –
(a) Direct that the property, or the part of it to which the interest of the
applicant relates, be returned to the applicant; or
(b) Direct that an amount equal to the value of the interest of the
applicant, as declared in the order, be paid to the applicant.
14 Discharge of forfeiture order on appeal and quashing of conviction
(1) Where the Court makes a forfeiture order against property in reliance
on a person’s conviction of an offence and the conviction is subsequently quashed, the quashing of the conviction discharges the order.
(2) Where a forfeiture order against property is discharged as provided by subsection (1) or by the Court hearing an appeal against the making of the order, any person who claims to have had an interest in the property immediately before the making of the forfeiture order may apply to the Premier, in writing, for the transfer of the interest to the person.
(3) On receipt of an application under subsection (2) from a person who
had such an interest in the property, the Cabinet shall –
(a) If the interest is vested in the Crown – give directions that the
property or part of it to which the interest of the applicant relates
be transferred to the person; or
(b) In any other case – direct that there be payable to the person an
amount equal to the value of the interest as at the time the order is
made.
(4) In the exercise of powers under this section and section 13, the Attorney-
General shall have the power to do, or authorise the doing of, anything necessary
or convenient to effect the transfer or return of property, including the execution
of any instrument and the making of an application for the registration of an interest
in the property on any appropriate register.
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15 Payment instead of forfeiture order
Where the Court is satisfied that a forfeiture order should be made in respect
of property of a person under section 11 or section 17 but that the property or any
part of it or interest in it cannot be made subject to such an order and, in particular
–
(a) Cannot, on the exercise of due diligence, be located;
(b) Has been transferred to a third party in circumstances that do not
give rise to a reasonable inference that the title or interest was
transferred for the purpose of avoiding the forfeiture of the property;
(c) Is located outside Niue; or
(d) Has been commingled with other property that cannot be divided
without difficulty;
the Court may, instead of ordering the property or part of it or interest in it to be
forfeited, order the person to pay to the Crown an amount equal to the value of
the property, part or interest.
16 Enforcement of order for payment instead of forfeiture
(1) An amount payable by a person to the Crown under an order under
section 15 is a civil debt due by the person to the Crown.
(2) An order against a person under section 15 may be enforced as if it
were an order made in civil proceedings instituted by the Crown against the person
to recover a debt due by the person to the Crown and the debt arising from the
order shall be taken to be a judgment debt.
17 Forfeiture order where person has absconded
(1) Subject to section 10(3), where an application is made to the Court under
section 10(1) for a forfeiture order against any tainted property because a person
has absconded in connection with a serious offence and the Court is satisfied that –
(a) Any property is tainted property in respect of the offence;
(b) Proceedings in respect of a serious offence committed in relation to
that property were commenced; and
(c) The accused charged with the offence referred to in paragraph (b)
has absconded;
the Court may order that the property, or such of the property as is specified by
the Court in the order, be forfeited to the Crown.
(2) Sections 11(2), (3), (4) and (5), 12 and 13 shall apply with such
modifications as are necessary to give effect to this section.
18 Registered foreign forfeiture orders
If a foreign forfeiture order is registered in the Court under the Mutual
Assistance in Criminal Matters Act 1998 sections 11 to 18 apply in relation to the
order as if –
(a) All references to an appeal against the making of an order and to
the relevant appeal date were omitted; and
(b) A period of 6 weeks were substituted for the period of 6 months
provided in section 13(3).
Confiscation Orders
19 Confiscation order on conviction
(1) Subject to this section, where the Attorney-General applies to the Court
for a confiscation order against a person in respect of that person’s conviction of a
serious offence, the Court may, if it is satisfied that the person has benefited from
Proceeds of Crime Act 1998
1433
that offence, order the person to pay to the Crown an amount equal to the value of the person’s benefits from the offence or such lesser amount as the Court certifies under section 23 to be the amount that might be realised at the time the confiscation order is made.
(2) The Court shall assess the value of the benefits derived by a person from the commission of an offence under sections 20 to 23.
(3) The Court shall not make a confiscation order under this section –
(a) Until the period allowed by the rules of court for the lodging of an
appeal against conviction has expired without such an appeal
having been lodged; or
(b) Where an appeal against conviction has been lodged, until the
appeal lapses under the rules of court or is finally determined.
20 Rules for determining benefit and assessing value
(1) Where a person obtains property as the result of, or in connection with
the commission of, a serious offence, the person’s benefit is the value of the property so obtained.
(2) Where a person derives an advantage as the result of, or in connection
with the commission of, a serious offence, the person’s advantage shall be deemed
to be a sum of money equal to the value of the advantage so derived.
(3) The Court, in determining whether a person has benefited from the
commission of a serious offence or from that offence taken together with other
serious offences and, if so, in assessing the value of the benefit, shall, unless the
contrary is proved, deem –
(a) All property –
(i) appearing to the Court to be held by the person on the day on
which the application is made; and
(ii) appearing to the Court to be held by the person at any time –
(A) within the period between the day the offence, or the earliest
offence, was committed and the day on which the
application is made; or
(B) within the period of 5 years immediately before the day on
which the application is made,
being whichever is the shorter period,
to be property that came into the possession or under the control of
the person by reason of the commission of that offence or those
offences;
(b) Any expenditure by the person since the beginning of that period
to be expenditure met out of payments received by the person as a
result of, or in connection with, the commission of that offence or
those offences; and
(c) Any property received or deemed to have been received by the
person at any time as a result of, or connection with, the commission
by the person of that offence, or those offences, to be property
received by the person free of any interests in it.
(4) Where a confiscation order has previously been made against a person,
in assessing the value of any benefit derived by the person from the commission
of the serious offence in respect of which the order was made, the Court shall
leave out of account any of the person’s benefits that are shown to the Court to
have been taken into account in determining the amount to be recovered under
that order.
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(5) If evidence is given at the hearing of the application that the value of the person’s property at any time after the commission of the serious offence exceeded the value of the person’s property before the commission of the offence, then the Court shall, subject to subsection (6), treat the value of the benefits derived by the person from the commission of the offence as being not less than the amount of the excess.
(6) If, after evidence of the kind referred to in subsection (5) is given, the person satisfies the Court that the whole or part of the excess was due to causes unrelated to the commission of the offence, subsection (5) does not apply to the excess or, as the case may be, that part.
21 Statements relating to benefits from commission of serious offences
(1) Where –
(a) A person has been convicted of a serious offence and the Attorney-
General tenders to the Court a statement as to any matters relevant –
(i) to determining whether the person has benefited from the
offence or from any other serious offence of which the person
is convicted in the same proceedings or which is taken into
account in determining his sentence; or
(ii) to an assessment of the value of the person’s benefit from the
offence or any other serious offence of which he is so convicted
in the same proceedings or which is so taken into account; and
(b) The person accepts to any extent an allegation in the statement,
the Court may, for the purposes of so determining or making that assessment, treat his acceptance as conclusive of the matters to which it relates.
(2) Where –
(a) A statement is tendered under subsection (1)(a); and
(b) The Court is satisfied that a copy of that statement has been served
on the person,
the Court may require the person to indicate to what extent the person accepts
each allegation in the statement and, so far as the person does not accept any such
allegation, to indicate any matters the person proposes to rely on.
(3) Where the person fails in any respect to comply with a requirement
under subsection (2), the person may be treated for the purposes of this section as
having accepted every allegation in the statement, other than –
(a) An allegation in respect of which the person has complied with the
requirement; and
(b) An allegation that the person has benefited from the serious offence
or that any property or advantage was obtained by the person as a
result of, or in connection with, the commission of the offence.
(4) Where –
(a) The person tenders to the Court a statement as to any matters
relevant to determining the amount that might be realised at the
time the confiscation order is made; and
(b) The Attorney-General accepts to any extent any allegation in the
statement,
the Court may, for the purposes of that determination, treat the acceptance of the
Attorney-General as conclusive of the matters to which it relates.
(5) An allegation may be accepted or matter indicated for the purposes of
this section either –
(a) Orally before the Court; or
(b) In writing under rules of court.
Proceeds of Crime Act 1998
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(6) An acceptance by a person under this section that he received any benefits from the commission of a serious offence is admissible in any proceedings for any offence.
22 Amount to be recovered under confiscation order
(1) Subject to subsection (2), the amount to be recovered in the person’s
case under a confiscation order shall be the amount which the Court assesses to
be the value of the person’s benefit from the offence or, if more than one, all the
offences in respect of which the order may be made.
(2) Where the Court is satisfied as to any matter relevant to determining
the amount which might be realised at the time the confiscation order is made
(whether by an acceptance under section 21 or otherwise) the Court may issue a
certificate giving the Court’s opinion as to the matters concerned, and shall do so
if satisfied that the amount that might be realised at the time the confiscation
order is made is less than the amount that the Court assesses to be the value of the
person’s benefit from the offence, or if more than one, all the offences in respect of
which the confiscation order may be made.
23 Variation of confiscation orders
(1) Where –
(a) The Court makes a confiscation order in relation to an offence;
(b) In calculating the amount of the confiscation order, the Court took
into account a forfeiture of property or a proposed forfeiture of
property or a proposed forfeiture order in respect of property; and
(c) An appeal against the forfeiture or forfeiture order is allowed or
the proceedings for the proposed forfeiture order terminate without
the proposed forfeiture order being made,
the Attorney-General may apply to the Court for a variation of the confiscation
order to increase the amount of the order by the value of the property and the
Court may, if it considers it appropriate to do so, vary the order accordingly.
(2) Where –
(a) The Court makes a confiscation order against a person in relation
to an offence;
(b) In calculating the amount of the confiscation order, the Court took
into account under section 5(5) and (6), an amount of tax paid by
the person; and
(c) An amount is repaid or refunded to the person in respect of that
tax,
the Attorney-General may apply to the Court for a variation of the confiscation
order to increase the amount of the order by the amount repaid or refunded and
the Court may, if it considers it appropriate to do so, vary the order accordingly.
24 Court may lift corporate veil
(1) In assessing the value of benefits derived by a person from the
commission of an offence or offences, the Court may treat as property of the person
any property that, in the opinion of the Court, is subject to the effective control of
the person whether or not the person has –
(a) Any legal or equitable interest in the property; or
(b) Any right, power or privilege in connection with the property.
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(2) Without limiting the generality of subsection (1), the Court may have regard to –
(a) Shareholdings in, debentures over or directorships of a company that has an interest (whether direct or indirect) in the property, and for this purpose the Court may order the investigation and inspection of the books of a named company;
(b) A trust which has a relationship to the property; and
(c) Any relationship whatsoever between persons having an interest
in the property, or in companies of the kind referred to in paragraph
(a) or trusts of the kind referred to in paragraph (b), and other
persons.
(3) Where the Court, for the purposes of making a confiscation order against
a person, treats particular property as the person’s property under subsection (1),
the Court may, on application by the Attorney-General, make an order declaring
that the property is available to satisfy the order.
(4) Where the Court declares that property is available to satisfy a
confiscation order –
(a) The order may be enforced against the property as if the property
were property of the person against whom the order is made; and
(b) A restraining order may be made in respect of the property as if the
property were property of the person against whom the order is
made.
(5) Where the Attorney-General makes an application for an order under
subsection (3) that property is available to satisfy a confiscation order against a
person –
(a) The Attorney-General shall give written notice of the application to the person and to any person who the Attorney-General has reason to believe may have an interest in the property; and
(b) The person and any person who claims an interest in the property
may appear and adduce evidence at the hearing of the application.
25 Enforcement of confiscation orders
(1) An amount payable by a person to the Crown under a confiscation
order is a civil debt due by the person to the Crown.
(2) A confiscation order against a person may be enforced as if it were an
order made in civil proceedings instituted by the Crown against the person to
recover a debt due by the person to the Crown and the debt arising from the order
shall be taken to be a judgment debt.
(3) Where a confiscation order is made against a person and the person is,
or becomes a bankrupt, the order may be enforced against the person or against
any property of the person that is not vested in the person’s trustee under the
Niue Act 1966.
26 Amounts paid in respect of registered foreign confiscation orders
Where a foreign confiscation order is registered in the Court under the
Mutual Assistance in Criminal Matters Act 1998, any amount paid, whether in
Niue or elsewhere, in satisfaction of the foreign confiscation order shall be taken
to have been paid in satisfaction of the debt that arises by reason of the registration
of the foreign confiscation order in the Court.
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PART 3
PROVISIONS FOR FACILITATING POLICE INVESTIGATIONS AND PRESERVING PROPERTY LIABLE
TO FORFEITURE AND CONFISCATION ORDERS
Powers of Search and Seizure
27 Warrant to search land for tainted property
(1) A constable may apply to a Commissioner for the issue of a warrant to
search land or premises for tainted property.
(2) Where an application is made under subsection (1) for a warrant to
search land or premises for tainted property, the Commissioner may issue a warrant
of that kind in the same manner, and subject to the same conditions, as a judge
could issue a search warrant under the Niue Act 1966 and, subject to sections 27 to
30 of this Act, the warrant may be executed in the same manner as if it had been
issued under that Act.
28 Police may seize other tainted property
In the course of a search under a warrant issued under section 27 a constable
may seize –
(a) Any property that the constable believes, on reasonable grounds,
to be tainted property in relation to any serious offence;
(b) Any thing that the constable believes, on reasonable grounds, will
afford evidence as to the commission of a criminal offence,
if the constable believes, on reasonable grounds, that it is necessary to seize that
property or thing in order to prevent its concealment, loss or destruction, or its
use in committing, continuing or repeating the offence or any other offence.
29 Return of property seized
(1) Where property has been seized under sections 27 to 30 (otherwise than
because it may afford evidence of the commission of an offence), a person who
claims an interest in the property may apply to the Court for an order that the
property be returned to that person.
(2) Where a person makes an application under subsection (1) and the Court
is satisfied that –
(a) The person is entitled to possession of the property;
(b) The property is not tainted property in relation to the relevant
offence; and
(c) The person in respect of whose conviction, charging or proposed
charging the seizure of the property was made has no interest in
the property,
the Court shall order the Chief of Police to return the property to the person and
the Chief of Police shall arrange for the property to be returned.
(3) Where –
(a) Property has been seized under sections 27 to 30, otherwise than
because it may afford evidence as to the commission of an offence;
(b) At the time when the property was seized, an information had not
been laid in respect of a relevant offence; and
(c) At the end of the period of 48 hours after the time when the property
was seized, an information has not been laid in respect of a relevant
offence,
the Chief of Police shall, subject to subsections (5) and (6), arrange for the property
to be returned to the person from whose possession it was seized as soon as
practicable after the end of that period.
1438 Niue Laws 2006 Vol 3
(4) Where –
(a) Property has been seized under sections 27 to 30, otherwise than
because it may afford evidence as to the commission of an offence;
and
(b) No forfeiture order has been made against the property within the
period of 14 days after the property was seized and the property is
in the possession of the Chief of Police at the end of that period;
the Chief of Police shall, subject to subsections (5) and (6), arrange for the property
to be returned to the person from whose possession it was seized as soon as
practicable after the end of that period.
(5) Where –
(a) Property has been seized under sections 27 to 30, otherwise than
because it may afford evidence as to the commission of an offence;
(b) But for this subsection, the Chief of Police would be required to
arrange for the property to be returned to a person as soon as
practicable after the end of a particular period; and
(c) Before the end of that period, a restraining order is made in relation
to the property,
the Chief of Police shall –
(d) If the restraining order directs the Financial Secretary to take custody
and control of the property – arrange for the property to be given
to the Financial Secretary in accordance with the restraining order;
(e) If the Court that made the restraining order has made an order under
subsection (6) in relation to the property – arrange for the property
to be kept until it is dealt with under another provision of this Act.
(6) Where –
(a) Property has been seized sections 27 to 30, other than because it
may afford evidence as to the commission of an offence;
(b) A restraining order is made in relation to the property; and
(c) At the time when the restraining order is made, the property is in
the possession of the Chief of Police,
the Chief of Police may apply to the Court that made the retraining order for an
order that the Chief of Police retain possession of the property and the Court may,
if satisfied that there are reasonable grounds for believing that the property may
afford evidence as to the commission of a relevant offence or any other offence,
make an order that the Chief of Police may retain the property for so long as the
property is so required as evidence as to the commission of that offence.
(7) Where the Chief of Police applies to the Court for an order under
subsection (6), a witness shall not be required to answer a question or to produce
a document if the Court is satisfied that the answering of the question or the
production of the document may prejudice the investigation of, or the prosecution
of a person for, an offence.
(8) Where –
(a) Property has been seized under sections 27 to 30; and
(b) While the property is in the possession of the Chief of Police, a
forfeiture order is made in respect of the property;
the Chief of Police shall deal with the property as required by the order.
Proceeds of Crime Act 1998
1439
30 Search for and seizure of tainted property in relation to foreign offences
(1) Where a constable is authorised, under the Mutual Assistance in
Criminal Matters Act 1998, to apply to a Commissioner for a search warrant under this Act in relation to tainted property in respect of a foreign serious offence, the constable may apply for the warrant accordingly and sections 27 to 30 apply to the application and to any warrant issued as a result of the application as if –
(a) References in sections 27 to 30 to tainted property were references to tainted property in relation to a foreign serious offence; and
(b) References in sections 27 to 30 to a relevant offence were references
to a relevant foreign serious offence;
(c) References in sections 27 to 30 to seizure of property under sections
27 to 30 were references to seizure of property under a warrant
issued under section 27 in respect of a foreign serious offence;
(d) The reference in section 29(2)(c) to the person in respect of whose
conviction, charging or proposed charging the seizure of the
property was made were a reference to the person who is believed
or alleged to have committed the relevant foreign serious offence;
(e) The reference in section 29(4) to a period of 14 days were a reference
to a period of 30 days;
(f) The references in sections 29(5) and (6) to the making of a restraining
order in relation to seized property were references to –
(i) the registration in the Court under the Mutual Assistance in
Criminal Matters Act 1998 of a foreign restraining order in
relation to the seized property; or
(ii) the making by the Court under this Act of a restraining order
in respect of the seized property in relation to the foreign serious
offence;
(g) The reference in section 29(8) to the making of a forfeiture order
were a reference to the registration in the Court under the Mutual
Assistance in Criminal Matters Act 1998 of a foreign forfeiture order;
and
(h) Sections 28 and 29(3) were omitted.
(2) If, in the course of searching under a warrant issued under section 27,
for tainted property in relation to a foreign serious offence, a constable finds –
(a) Property that the constable believes, on reasonable grounds, to be
tainted property in relation to any foreign serious offence in respect
of which a search warrant under section 27 is in force; or
(b) Any thing that the constable believes, on reasonable grounds –
(i) to be relevant to a criminal proceeding in the foreign country
in respect of the foreign serious offence; or
(ii) will afford evidence as to the commission of a criminal offence,
and the constable believes, on reasonable grounds, that it is necessary to seize that
property or thing in order to prevent its concealment, loss or destruction, or its
use in committing, continuing or repeating the offence, the warrant shall be deemed
to authorise the constable to seize that property or thing.
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Restraining Orders
31 Application for restraining order
(1) Where a person (in sections 31 to 46 called the “defendant”) –
(a) Has been convicted of a serious offence; or
(b) Has been, or is about to be, charged with a serious offence,
the Attorney-General may apply to the Court for a restraining order under
subsection (2) against any realisable property held by the defendant or specified
realisable property held by a person other than the defendant.
(2) An application for a restraining order may be made ex parte and shall
be in writing and be accompanied by an affidavit stating –
(a) Where the defendant has been convicted of a serious offence – the
offence of which the defendant was convicted, the date of the
conviction, the Court before which the conviction was obtained and
whether an appeal has been lodged against the conviction;
(b) Where the defendant has not been convicted of a serious offence –
the offence with which the defendant is, or is about to be, charged
and the grounds for believing that the defendant committed the
offence;
(c) Where the defendant is about to be charged with a serious offence
– the grounds for believing that the defendant will be charged with
a serious offence within 48 hours;
(d) A description of the property in respect of which the restraining
order is sought;
(e) The name and address of the person who is believed to be in
possession of the property;
(f) Where the application seeks a retraining order against property of
the defendant – the grounds for the belief that the property is tainted
property in relation to the offence or the defendant derived a benefit
directly or indirectly from the commission of the offence; and
(g) Where the application seeks a restraining order against property of
a person other than the defendant – the grounds for the belief that
the property is tainted property in relation to the offence or is subject
to the effective control of the defendant.
32 Restraining order
(1) Subject to this section, where the Attorney-General applies to the Court
for a restraining order against property and the Court is satisfied that –
(a) The defendant has been convicted of a serious offence or has been
charged with a serious offence or will be charged with a serious
offence within 48 hours;
(b) Where the defendant has not been convicted of the offence – there
are reasonable grounds for believing that the defendant committed
the offence;
(c) Where the application seeks a restraining order against property of
the defendant – there are reasonable grounds for believing that the
property is tainted property in relation to the offence or that the
defendant derived a benefit directly or indirectly from the
commission of the offence;
(d) Where the application seeks a restraining order against property of
a person other than the defendant – there are reasonable grounds
for believing that the property is tainted property in relation to the
offence or that the property is subject to the effective control of the
defendant,
the Court may make an order –
Proceeds of Crime Act 1998
1441
(e) Prohibiting the defendant or any person from disposing of, or otherwise dealing with, the property or such part of it or interest in it as is specified in the order, except in such manner as is specified in the order; and
(f) At the request of the Attorney-General, where the Court is satisfied that the circumstances so require – directing the Financial Secretary to take custody of the property or such part of it as is specified in the order and to manage or otherwise deal with all or any part of the property under the directions of the Court.
(2) An order under subsection (1) may be made subject to such conditions as the Court thinks fit and, without limiting the generality of this section, may make provision for meeting, out of the property or a specified part of the property, all or any of the following –
(a) The person’s reasonable living expenses (including the reasonable living expenses of the person’s dependants (if any)) and reasonable business expenses;
(b) The person’s reasonable expenses in defending a criminal charge and any proceedings under this Act;
(c) Another specified debt incurred by the person in good faith;
but the Court shall not make such provision unless it is satisfied that the person
cannot meet the expense or debt concerned out of property that is not subject to a
restraining order.
(3) In determining whether there are reasonable grounds for believing the
property is subject to the effective control of the defendant the Court may have
regard to the matters referred to in section 24(2).
(4) Where the Financial Secretary is given a direction under subsection
(1)(f) in relation to property, the Financial Secretary may do anything that is
reasonably necessary for preserving the property and for this purpose may exercise
any power that the owner of the property could exercise and do so to the exclusion
of the owner.
(5) Where the Attorney-General applies to the Court for an order under
subsection (1), a witness shall not be required to answer a question or to produce
a document if the Court is satisfied that answering the question or producing the
document may prejudice the investigation of, or prosecution of a person for, an
offence.
33 Undertakings by the Crown
(1) Before making an order under section 32, the Court may require the
Crown to give such undertakings as the Court considers appropriate with respect
to the payment of damages or costs, or both, in relation to the making and execution
of the order.
(2) For the purposes of this section, the Attorney-General may, on behalf
of the Crown, give to the Court such undertakings with respect to the payment of
damages or costs, or both, as are required by the Court.
34 Notice of application for restraining order
(1) Subject to subsection (2), before making a restraining order, the Court
shall require notice to be given to, and may hear, any person who, in the opinion
of the Court, may have an interest in the property.
(2) If the Attorney-General so requests, the Court shall consider the
application without requiring notice to be given under subsection (1) but a
restraining order made under this subsection shall cease to have effect after 14
days or such lesser period as the Court specifies in the order.
1442 Niue Laws 2006 Vol 3
(3) The Court may, on application by the Attorney-General, extend the period of operation of a restraining order made under subsection (2), but shall not consider the application without requiring notice to be given under subsection (1).
35 Service of restraining order
(1) Subject to subsection (2), a copy of a restraining order shall be served
on a person affected by the order in such manner as the Court directs or as may be
prescribed by rules of Court.
(2) Where the Court is satisfied that it is in the public interest to do so it
may order that service under subsection (1) be delayed for a specified period.
36 Further orders
(1) Where the Court makes, or has made, a restraining order, the Court
may, on application by the Attorney-General, a person whose property is the subject
of the restraining order (in this section called “the owner”), the Financial Secretary
(if the restraining order directs the Financial Secretary to take custody and control
of property) or, with the leave of the Court, any other person, make any ancillary
orders it considers appropriate.
(2) Without limiting the generality of subsection (1), an ancillary order
may –
(a) Vary the property to which a restraining order relates;
(b) Vary any condition to which a restraining order is subject;
(c) Order the examination on oath before the Court of any person about
the affairs of the owner or the defendant;
(d) Provide for the carrying out of any undertaking with respect to the
payment of damages or costs given by the Crown in connection
with the making of the restraining order;
(e) Direct the owner or the defendant to give to a specified person a
statement on oath setting out such particulars of the property, or
dealings with the property, as the Court thinks proper;
(f) Where the restraining order directs the Financial Secretary to take
custody and control of property –
(i) regulate the performance or exercise of the Financial Secretary’s
functions, duties or powers under the restraining order;
(ii) determine any question relating to the property;
(iii) direct a person to do any act or thing to enable the Financial
Secretary to take custody and control of the property;
(iv) where the restraining order provides that a person’s reasonable
expenses in defending a criminal charge be met out of the
property , direct that such expenses be taxed as provided in
the order before being met; and
(v) make provision for the payment to the Financial Secretary out
of the property of the costs, charges and expenses incurred in
connection with the performance or exercise by the Financial
Secretary of functions, duties or powers under the restraining
order.
(3) Where a person who has an interest in property in respect of which a
restraining order was made applies to the Court for a variation of the order to exclude the person’s interest from the order, the Court shall grant the application if the Court is satisfied –
Proceeds of Crime Act 1998
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(a) That the interest is not tainted property and that it cannot be required to satisfy a confiscation order; or
(b) That the applicant was not in any way involved in the commission of the offence in respect of which the restraining order was made and, where the applicant acquired the interest at the time of or after the commission (or alleged commission) of the offence, that the applicant acquired the interest –
(i) for sufficient consideration; and
(ii) without knowing, and in circumstances such as not to arouse a
reasonable suspicion, that the property was tainted property;
or
(c) in any case – it is in the public interest to do so having regard to all
the circumstances, including any financial hardship or other
consequence of the interest remaining subject to the order.
(4) An application under subsection (1) shall not be heard by the Court
unless the applicant has given to each other person who is entitled to make an
application under subsection (1) in relation to the restraining order notice in writing
of the application.
(5) The Court may require notice of the application to be given to, and
may hear, any person who, in the opinion of the Court, appears to have an interest
in the property.
(6) Where a person is required, under an order under subsection (2)(c) or
(e), to make or give a statement on oath, the person is not excused from making or
giving the statement on the ground that the statement, or part of the statement,
might tend to incriminate the person or make the person liable to forfeiture or a
penalty but such a statement, and any information, document or thing obtained
as a direct or indirect consequence of the statement, is not admissible against the
person in any criminal proceedings except a proceeding in respect of the falsity of
the statement.
37 Financial Secretary to satisfy confiscation order
(1) Where –
(a) A confiscation order is made against a defendant in reliance on the
defendant’s conviction of an offence; and
(b) A restraining order is made against property of the defendant, or
property of another person in relation to which an order under
section 24(3) is in force, in reliance on the defendant’s conviction,
or alleged commission, of the offence,
the Court may, upon the making of the later of the orders or, on application by the Attorney-General, at any time after it while the restraining order remains in force, direct the Financial Secretary to satisfy the confiscation order by a payment to the Crown out of the property.
(2) For the purposes of enabling the Financial Secretary to comply with a direction under subsection (1), the Court may –
(a) Direct the Financial Secretary to sell or otherwise dispose of such of the property as the Court specifies; and
(b) Order that the Financial Secretary may execute, and do anything
necessary to give validity and operation to, any deed or instrument
in the name of a person who owns or has an interest in the property,
and, where the Court makes such an order, the execution of the deed or instrument
by the Financial Secretary has the same force and validity as if the deed or
instrument had been executed by the person.
1444 Niue Laws 2006 Vol 3
(3) The Financial Secretary shall refrain from taking action to sell property under a direction under subsection (1) –
(a) Until the relevant appeal date; or
(b) If proceedings in bankruptcy against the owner of the property are
in progress or the owner is bankrupt.
(4) In this section “relevant appeal date”, used in relation to a confiscation
order made in consequence of a person’s conviction of a serious offence, means –
(a) The date on which the period allowed by the rules of Court for the
lodging of an appeal against a person’s conviction, or for the lodging
of an appeal against the making of a confiscation order, expires
without an appeal having been lodged, whichever is the later; or
(b) Where an appeal against a person’s conviction or against the making
of a confiscation order is lodged – the date on which the appeal, or
the later appeal, lapses in accordance with the rules of court or is
finally determined.
38 Registration of restraining order
Where a restraining order applies to property of a particular kind and the
provisions of any law of Niue provide for the registration of title to, or charges
over, property of that kind, the authority responsible for administering those
provisions may, on application by the Attorney-General, record on the register
kept under those provisions the particulars of the restraining order and, if those
particulars are so recorded, a person who subsequently deals with the property
shall, for the purposes of section 39, be deemed to have notice of the restraining
order at the time of the dealing.
39 Contravention of restraining orders
(1) A person who knowingly contravenes a restraining order by disposing
of, or otherwise dealing with, property that is subject to the restraining order
commits an indictable offence punishable, on conviction, by –
(a) In the case of a natural person – a fine not exceeding 300 penalty
units or imprisonment for a period not exceeding 5 years, or both;
or
(b) In the case of a body corporate – a fine not exceeding 1500 penalty
units.
(2) Where a restraining order is made against property and the property is
disposed of, or otherwise dealt with, in contravention of the restraining order,
and the disposition or dealing was either not for sufficient consideration or not in
favour of a person who acted in good faith the Attorney-General may apply to the
Court that made the restraining order for an order that the disposition or dealing
be set aside.
(3) Where the Attorney-General makes an application under subsection
(2) in relation to a disposition or dealing, the Court may –
(a) Set aside the disposition or dealing as from the day on which the
disposition or dealing took place; or
(b) Set aside the disposition or dealing as from the day of the order
under this subsection and declare the respective rights of any
persons who acquired interests in the property on or after the day
on which the disposition or dealing took place and before the day
of the order under this subsection.
Proceeds of Crime Act 1998
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40 Court may revoke restraining orders
(1) Where the Court has made a restraining order against a person’s
property, the Court may, on application by the person, revoke the order if the
applicant –
(a) Where the applicant is a defendant – gives security satisfactory to
the Court for the satisfaction of any confiscation order that may be
made against the person under this Act; or
(b) Gives undertakings satisfactory to the Court concerning the person’s
property.
(2) An applicant under subsection (1) shall give written notice of the
application to the Attorney-General and, if the restraining order directed the
Financial Secretary to take control of property, to the Financial Secretary.
41 When restraining order ceases to be in force
(1) Subject to subsection (2), a restraining order made in reliance on a
person’s conviction, or alleged commission, of a serious offence ceases to be in
force, in whole or in part, as the case requires –
(a) Where the order is made in reliance on the proposed charging of
the person with the offence and the person is not so charged within
the period of 48 hours after the making of the order – at the end of
that period;
(b) When the charge against the person is withdrawn or the person is
acquitted of the charge;
(c) When property subject to the order is used to satisfy a confiscation
order which was made in reliance on the person’s conviction of the
offence;
(d) When the Court refuses an application for a confiscation order in
reliance on the person’s conviction of the offence;
(e) When property subject to the order is forfeited under section 11 or
17.
(2) In spite of anything in subsection (1), a restraining order ceases to be in
force at the end of 6 months after the day when the restraining order was made
but the Court may within that period, on application by the Attorney-General,
order that the restraining order shall continue in force until a specified time or
event, if the Court is satisfied that a forfeiture order may still be made in respect of
the property or that the property may be required to satisfy a confiscation order
which has not yet been made.
(3) The Attorney-General shall give a person written notice of an
application under subsection (2) in relation to a restraining order in respect of
property of the person.
42 Interim restraining order may be made in respect of foreign offence
(1) Where the Attorney-General is authorised, under the Mutual Assistance
in Criminal Matters Act 1998, to apply for a restraining order under this Act against
any property of a person in respect of a foreign serious offence, the Attorney-
General may apply for the order accordingly and sections 31 to 46 apply to the
application and to any restraining order made as a result of the application as if –
(a) Reference in sections 31 to 46 to a serious offence were a reference
to the foreign serious offence;
(b) A reference in sections 31 to 46 to a person charged or about to be
charged with a serious offence were a reference to a person against
whom a criminal proceeding in respect of a foreign serious offence
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has commenced, or is reasonably believed to be about to commence, in a foreign country;
(c) There were substituted for the words of section 31(2)(b) the following words –
“where the defendant has not been convicted of a foreign serious offence – the offence which the defendant is believed to have committed and the grounds for that belief”;
(d) There were substituted for the words of section 32(1)(a) the following words –
“the defendant has been convicted of a foreign serious offence, or a criminal proceeding in respect of a foreign serious offence has commenced, or is reasonably believed to be about to commence, against the defendant in a foreign country”;
(e) The reference in section 32(2)(b) to a person’s reasonable expenses in defending a criminal charge includes a reference to the person’s reasonable expenses in being represented in a criminal proceeding in a foreign country; and
(f) Sections 31(2)(c) and (f), 32(1)(c), 36(3)(a), 37, 40 and 41 were omitted.
(2) Subject to subsections (3) and (4), a restraining order made in respect
of a foreign serious offence ceases to have effect at the end of the period of 30 days
commencing on the day on which the order is made.
(3) Where the Court makes a restraining order in respect of a foreign serious
offence, it may, on application made by the Attorney-General before the end of
the period referred to in subsection (2), extend the period of operation of the
restraining order.
(4) Where –
(a) A restraining order against property is made in respect of a foreign
serious offence; and
(b) Before the end of the period referred to in subsection (2) (including
that period as extended under subsection (3)) a foreign restraining
order against the property is registered in the Court under the
Mutual Assistance in Criminal Matters Act 1998,
the restraining order referred to in paragraph (a) ceases to have effect upon the
registration of the foreign restraining order referred to in paragraph (b).
43 Registered foreign restraining orders – general
Where a foreign restraining order is registered in the Court under the Mutual
Assistance in Criminal Matters Act 1998, sections 31 to 46 apply in relation to the order as if –
(a) Sections 36, 37(3) and (4), 40 and 41 were omitted;
(b) A reference in section 35, 37, 38 or 39 to a restraining order included
a reference to an order under section 44; and
(c) The reference in section 37(1) to the making of a restraining order
were a reference to the registration by the Court of a foreign
restraining order under the Mutual Assistance in Criminal Matters
Act 1998 and the making of an order under section 44.
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44 Registered foreign restraining orders – Court may direct Financial
Secretary to take custody and control of property
(1) Where a foreign restraining order against property is registered in the
Court under the Mutual Assistance in Criminal Matters Act 1998, the Court may,
if satisfied, upon application by the Attorney-General, that the circumstances so
require, by order direct the Financial Secretary to take custody and control of the
property, or of such part of it as is specified in the Court order and to manage or
otherwise deal with all or any part of the property under the directions of the
Court.
(2) Before making an order under subsection (1), the Court shall require notice to be given to, and may hear, any person who, in the opinion of the Court, may have an interest in the property.
(3) Where the Financial Secretary is given an order under subsection (1) in relation to property, the Financial Secretary may do anything that is reasonably necessary for preserving the property and for this purpose may exercise any power that the owner of the property could exercise and do so to the exclusion of the owner.
(4) Where an order is made under subsection (1) in respect of property of
a person (in this subsection called the “respondent”), the Court may, at the time
when it makes the order or at any later time, make any one or more of the following
orders –
(a) Directing the respondent to give the Financial Secretary a statement on oath setting out such particulars of the property, or dealings with the property, as the Court thinks proper;
(b) Regulating the performance or exercise of the Financial Secretary’s functions, duties or powers under the restraining order;
(c) Determining any question relating to the property;
(d) Where the registered foreign restraining order provides that a
person’s reasonable expenses in defending a criminal charge be met
out of the property – directing that such expenses be taxed as
provided in the order before being met; and
(e) Making provision for the payment to the Financial Secretary out of
the property of the costs, charges and expenses incurred in
connection with the performance or exercise by the Financial
Secretary of functions, duties or powers under the restraining order.
45 Registered foreign restraining orders – undertakings
Where –
(a) A foreign restraining order against property is registered in the
Court under the Mutual Assistance in Criminal Matters Act 1998;
or
(b) The Court makes an order under section 44 in respect of property,
the Court may, upon application by a person claiming an interest in the property,
make an order as to the giving, or carrying out, of an undertaking by the Attorney-
General, on behalf of the Crown, with respect to the payment of damages or costs
in relation to the registration, making or operation of the order.
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46 Registered foreign restraining orders – time when order ceases to be in force
A foreign restraining order registered in the Court under the Mutual Assistance in Criminal Matters 1998 ceases to be in force when the registration is cancelled under that Act.
Production Orders, and Other Information Gathering Powers
47 Production and inspection orders
(1) Where –
(a) A person has been convicted of a serious offence and a constable
has reasonable grounds for suspecting that a person has possession
or control of a property-tracking document or property-tracking
documents in relation to the offence; or
(b) A constable has reasonable grounds for suspecting that a person
has committed a serious offence and that a person has possession
or control of a property-tracking document or property-tracking
documents in relation to the offence;
the constable may apply to a Judge in Chambers under subsection (2) for an order
under subsection (5) against the person suspected of having possession or control
of the document or documents.
(2) An application under subsection (1) shall be made ex parte and shall be
in writing and be accompanied by an affidavit.
(3) Where a constable applies for an order under subsection (5) in respect
of an offence and includes in the affidavit a statement to the effect that the constable
has reasonable grounds to believe that –
(a) The person who was convicted of the offence, or who is believed to
have committed the offence, derived a benefit, directly or indirectly,
from the commission of the offence; and
(b) Property specified in the affidavit is subject to the effective control
of the person referred to in paragraph (a),
the Judge may treat any document relevant to identifying, locating or quantifying
that property as a property-tracking document in relation to the offence for the
purposes of this section.
(4) In determining whether to treat a document, under subsection (3), as a
property-tracking document in relation to an offence, the Judge may have regard
to the matters referred to in section 24(2).
(5) Subject to subsection (6), but notwithstanding any enactment which
prohibits disclosure of information of a particular type, where an application is
made under subsection (1) for an order against a person, the Judge may, if satisfied
that there are reasonable grounds for doing so, make an order requiring the person
to –
(a) Produce to a constable, at a specified time and place, any documents of the kind referred to in subsection (1) that are in the person’s possession or control; or
(b) Make available to a constable for inspection, at a specified time or times, any documents of that kind that are in the person’s possession or control.
(6) An order under subsection (5)(a) shall not be made in respect of accounting records used in the ordinary business of banking, including ledgers, day-books, cash books and account books.
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48 Scope of police powers under production order
(1) Where a document is produced to a constable, or made available to a
constable for inspection pursuant to an order under section 47, the constable may –
(a) Inspect the document;
(b) Take extracts from the document;
(c) Make copies of the document;
(d) In the case of an order under section 47(5)(a) – retain the document
if, and for so long as, retention of the document is reasonably
necessary for the purposes of this Act.
(2) Where a constable retains a document pursuant to an order under
section 47, the constable shall –
(a) Give the person to whom the order was addressed a copy of the
document certified by the constable in writing to be a true copy of
the document retained; and
(b) Unless the person has received a copy of the document under
paragraph (a) – permit the person to –
(i) inspect the document;
(ii) take extracts from the document; or
(iii) make copies of the document.
49 Evidential value of information
(1) Where a person produces or makes available a document pursuant to
an order under section 47, the production or making available of the document,
or any information, document or thing obtained as a direct or indirect consequence
of the production or making available of the document, is not admissible against
the person in any criminal proceedings except a proceeding for an offence against
section 51.
(2) For the purposes of subsection (1), proceedings on an application for a
restraining order, a forfeiture order or a confiscation order are not criminal
proceedings.
(3) A person is not excused from producing or making available a document
when required to do so by an order under section 47 on the ground that –
(a) The production or making available of the document might tend to
incriminate the person or make the person liable to penalty; or
(b) The production or making available of the document would be in
breach of an obligation (whether imposed by enactment or
otherwise) of the person not to disclose the existence or contents of
the document.
50 Variation of production order
Where a Judge makes a production order requiring a person to produce a
document to a constable, the person may apply to the Judge or another Judge for
a variation of the order and if the Judge hearing the application is satisfied that
the document is essential to the business activities of the person, the Judge may
vary the production order so that it requires the person to make the document
available to a constable for inspection.
51 Failure to comply with production order
(1) Where a person is required by a production order to produce a
document to a constable or make a document available to a constable for inspection,
the person commits an offence against this subsection if the person –
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(a) Contravenes the order without reasonable excuse; or
(b) In purported compliance with the order produces or makes
available a document known to the person to be false or misleading
in a material particular without –
(i) indicating to the constable to whom the document is produced
or made available that the document is false or misleading and
the respect in which the document is false or misleading; and
(ii) providing correct information to the constable if the person is
in possession of, or can reasonably acquire, the correct
information.
(2) An offence against subsection (1) is punishable, on conviction, by –
(a) If the offender is a natural person – a fine not exceeding 300 penalty
units or imprisonment for a period not exceeding 5 years, or both;
or
(b) If the offender is a body corporate – a fine not exceeding 1500 penalty
units.
Search warrant to facilitate investigation
(1) Where –
(a) A person is convicted of a serious offence and a constable has
reasonable grounds for suspecting that there is in any premises a
property-tracking document in relation to the offence; or
(b) A constable has reasonable grounds for suspecting that a person
has committed a serious offence and there is in any premises a
property-tracking document in relation to the offence;
the constable may apply to a Judge for a warrant under subsection (4) to search the premises for the document.
(2) Where a constable applies for a warrant under subsection (4) in respect of an offence and includes in the affidavit a statement to the effect that the officer has reasonable grounds to believe that –
(a) The person who was convicted of the offence, or who is believed to have committed the offence, derived a benefit, directly or indirectly, from the commission of the offence; and
(b) Property specified in the affidavit is subject to the effective control of the person referred to in paragraph (a),
the Judge may treat any document relevant to identifying, locating or quantifying that property as a property-tracking document in relation to the offence for the purposes of this section.
(3) In determining whether to treat a document, under subsection (2), as a property-tracking document in relation to an offence, the Judge may have regard to the matters referred to in section 24(2).
(4) Subject to subsection (5), but notwithstanding any enactment which prohibits disclosure of information of a particular type, where an application is made under subsection (1) for a warrant to search premises for a property-tracking document, the Judge may, if satisfied that there are reasonable grounds for doing so, issue a warrant of that kind in the same manner, and subject to the same conditions, as a Judge could issue a search warrant under the Niue Act 1966 and, subject to sections 47 to 53, the warrant may be executed in the same manner as if it had been issued under that Act.
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1451
(5) A Judge shall not issue a search warrant under subsection (4) unless the Judge is satisfied that –
(a) It would not be appropriate to make a production order in respect of the document; or
(b) The investigation for the purposes of which the search warrant is being sought might be seriously prejudiced if the constable does not gain immediate access to the document without notice to any person.
(6) Where a constable enters premises in execution of a warrant issued
under this section, the police officer may seize and retain –
(a) Any document which is likely to be of substantial value (whether
by itself or together with other documents) to the investigation for
the purpose of which the warrant was issued; and
(b) Any thing that the constable believes, on reasonable grounds, will
afford evidence as to the commission of a criminal offence.
(7) In this section “premises” includes any place and in particular any
building, receptacle, vehicle, vessel or aircraft.
53 Production orders and search warrants in relation to foreign offences
(1) Where a constable is authorised, under the Mutual Assistance in
Criminal Matters Act 1998, to –
(a) Apply to a Judge of the Court for a production order under this Act
in respect of a foreign serious offence; or
(b) Apply to the Court for a search warrant under this Act in relation
to a property-tracking document in respect of a foreign serious
offence;
the constable may apply for the order or warrant accordingly and sections 47 to
53 apply to the application and to any order or warrant issued as a result of the
application as if a reference in those sections to a serious offence were a reference
to the foreign serious offence.
(2) Where a constable takes possession of a document under a production
order made, or a warrant issued, in respect of a foreign serious offence, the constable
may retain the document for a period not exceeding one month pending a written
direction from the Attorney-General as to the manner in which the document is to
be dealt with (which may include a direction that the document is to be sent to an
authority of the foreign country that requested the issue of the warrant).
54 Monitoring orders
Monitoring Orders
(1) A constable may apply to a Judge in Chambers under subsection (2) for an order (in sections 54 and 55 called a “monitoring order”) directing a financial institution to give information to a constable.
(2) An application under subsection (1) shall be made ex parte and shall be in writing and be accompanied by an affidavit.
(3) A monitoring order shall direct a financial institution to give information obtained by the institution about transactions conducted through an account held by a particular person with the institution.
(4) A monitoring order shall apply in relation to transactions conducted during the period specified in the order, being a period commencing not earlier than the day on which notice of the order is given to the financial institution and ending not later than 3 months after the date of the order.
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(5) A Judge shall not make a monitoring order unless the Judge is satisfied that there are reasonable grounds for suspecting that the person in respect of whose account the information is sought –
(a) Has committed, or is about to commit, a serious offence;
(b) Was involved in the commission, or is about to be involved in the
commission, of a serious offence; or
(c) Has benefited directly or indirectly, or is about to benefit directly
or indirectly, from the commission of a serious offence.
(6) A monitoring order shall specify –
(a) The name or names in which the account is believed to be held;
(b) The class of information that the institution is required to give; and
(c) The name of the constable to whom the information is to be given,
and the manner in which the information is to be given.
(7) Where a financial institution is, or has been, subject to a monitoring
order, the fact that the monitoring order has been made shall be disregarded for
the purposes of the application of sections 64 and 65 in relation to the institution.
(8) Where a financial institution that has been given notice of a monitoring
order knowingly –
(a) Contravenes the order; or
(b) Provides false or misleading information in purported compliance
with the order;
the institution is guilty of an offence against this subsection punishable, on
conviction, by a fine not exceeding 3000 penalty units.
(9) A reference in this section to a transaction conducted through an account
includes a reference to –
(a) The making of a fixed term deposit; and
(b) In relation to a fixed term deposit – the transfer of the amount
deposited, or any part of it, at the end of the term; and
(c) The opening, existence or use of a deposit box held by the institution.
55 Monitoring orders not to be disclosed
(1) A financial institution that is, or has been, subject to a monitoring order
shall not disclose the existence or the operation of the order to any person except – (a) The Chief of Police or a constable authorised in writing by the Chief
of Police to receive the information;
(b) An officer or agent of the institution, for the purpose of ensuring
that the order is complied with; or
(c) A legal practitioner or adviser, for the purpose of obtaining legal
advice or representation in relation to the order.
(2) A person of a kind referred to in subsection (1)(a), (b) or (c) to whom a
disclosure of the existence or operation of a monitoring order has been made
(whether under subsection (1) or a previous application of this subsection or
otherwise) shall not –
(a) Disclose the existence or operation of the order except to another
person of a kind referred to in subsection (1)(a), (b) or (c) for the
purposes of –
(i) if the disclosure is made by the Chief of Police or a constable –
the performance of that officer ’s duties;
(ii) if the disclosure is made by an officer or agent of the institution
– ensuring that the order is complied with or obtaining legal
advice or representation in relation to the order; or
(iii) if the disclosure is made by a legal practitioner – giving legal
advice or making representations in relation to the order; or
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1453
(b) When the person is no longer a person of a kind referred to in subsection (1)(a), (b) or (c) – make a record of, or disclose, the existence or the operation of the order in any circumstances.
(3) Nothing in subsection (2) prevents the disclosure by a person of a kind referred to in subsection (1)(a) of the existence or operation of a monitoring order –
(a) For the purposes of, or in connection with, legal proceedings; or
(b) In the course of proceedings before a court.
(4) A person of a kind referred to in subsection (1)(a) shall not be required
to disclose to any court the existence or operation of a monitoring order.
(5) A person who contravenes subsection (1) or (2) is guilty of an offence
punishable, on conviction by –
(a) If the person is a natural person – a fine not exceeding 600 penalty
units or imprisonment for a period not exceeding 10 years, or both;
or
(b) If the person is a body corporate – a fine not exceeding 3000 penalty
units.
(6) A reference in this section to disclosing the existence or operation of a
monitoring order to a person includes a reference to disclosing information to the
person from which the person could reasonably be expected to infer the existence
or operation of the monitoring order.
Obligations of financial institutions
56 Retention of records by financial institutions
(1) Subject to this section and to section 57, a financial institution shall
retain, in its original form, for the minimum retention period applicable to the document, a document that relates to a financial transaction carried out by the institution in its capacity as a financial institution, including, without limiting the generality of this, a document that relates to –
(a) The opening or closing by a person of an account with the
institution;
(b) The operation by a person of an account with the institution;
(c) The opening or use by a person of a deposit box held by the
institution;
(d) The telegraphic or electronic transfer of funds by the institution on
behalf of a person to another person;
(e) The transmission of funds between Niue and a foreign country or
between foreign countries on behalf of a person; or
(f) An application by a person for a loan from the institution, where a
loan is made to the person under the application.
(2) Subsection (1) does not apply to –
(a) A document of a type referred to in subsection (1)(b) that relates to
a single deposit, credit, withdrawal, debit or transfer of an amount
of money that does not exceed $2,000 or such higher amount as is
prescribed for the purposes of this paragraph; or
(b) A document –
(i) that is not a document given to the institution by or on behalf
of a customer, and
(ii) whose retention is not necessary in order to preserve a record
of the financial transaction concerned.
(3) A financial institution required to retain documents under this section
shall retain them on microfilm or in another way that makes retrieval of the
documents, or of the information contained in the documents, reasonably
practicable.
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(4) A financial institution that contravenes subsection (1) or (3) is guilty of an offence against this section punishable, on conviction, by a fine not exceeding
300 penalty units.
(5) This section does not limit any other obligation of a financial institution
to retain documents.
57 Register of original documents
(1) Where a financial institution is required by law to release an original of
a document before the end of the minimum retention period applicable to the
document, the institution shall retain a complete copy of the document until the
period has ended or the original document is returned, whichever occurs first.
(2) The financial institution shall maintain a register of documents released
under subsection (1).
(3) A financial institution that contravenes subsection (1) or (2) is guilty of
an offence against this section punishable, on conviction, by a fine not exceeding
300 penalty units.
58 Communication of information to law enforcement authorities
(1) Where a financial institution is a party to a transaction and the institution
has reasonable grounds to suspect that information that the institution has
concerning the transaction –
(a) May be relevant to an investigation of, or the prosecution of, a person
for an offence; or
(b) May be of assistance in the enforcement of this Act or any regulations
made under it;
the institution may give the information to a constable or the Attorney-General.
(2) An action, suit or proceedings does not lie against –
(a) A financial institution; or
(b) An officer, employee or agent of a financial institution acting in the
course of the person’s employment or agency,
in relation to an action taken by the institution or person under subsection (1).
(3) Where a financial institution gives information to a constable or the
Attorney-General, under subsection (1), about the institution’s suspicion in relation
to a transaction to which the institution is a party, the institution, or an officer,
employee or agent of the institution, must not, unless required to do so under this
Act or any other Act, disclose to anyone else –
(a) That the institution has formed the suspicion; or
(b) That information has been given; or
(c) Any other information from which the person to whom the
information is disclosed could reasonably be expected to infer that
the suspicion had been formed or that the first-mentioned
information had been given.
(4) A financial institution, or an officer, employee or agent of the institution,
who contravenes subsection (3) is guilty of an offence punishable, on conviction
by –
(a) If the offender is a natural person – a fine not exceeding 120 penalty units, or imprisonment for a term not exceeding 2 years, or both; or
(b) If the offender is a body corporate – a fine not exceeding 600 penalty units.
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59 Protection for financial instutitions
Where a financial institution, or a person who is an officer, employee or
agent of the institution, gives the information under section 58(1) as soon as
practicable after forming the belief referred to in that subsection, the institution
shall be taken for the purposes of sections 64 and 65 not to have been in possession
of that information at any time.
60 Interpretation
For the purposes of sections 56 to 60 –
“customer”, in relation to a financial institution, means a person by or on
behalf of whom a financial transaction of a type referred to in section
56(1) is carried out by the institution;
“financial institution” means –
(a) A bank;
(b) A building society;
(c) A credit union;
(d) A trust company;
(e) A finance company; or
(f) A deposit taking company, designated as such by the Minister
responsible for finance;
“minimum retention period” means –
(a) If the document relates to the opening of an account with the
institution – the period of 7 years after the day on which the account
is closed;
(b) If the document relates to the opening by a person of a deposit box
held by the institution – the period of 7 years after the day on which
the deposit box ceases to be used by the person; or
(c) In any other case – the period of 7 years after the day on which the
transaction takes place.
Disclosure of Information Held by Government Departments
61 Direction to disclose information
Notwithstanding any provision in any other law, the Attorney-General may
direct the person in charge of any Government department or statutory body to
disclose a document or information which is in the possession or under the control
of that person or to which that person may reasonably have access (not being a
document readily available to the public), if the Attorney-General is satisfied that
the information is relevant to –
(a) Establishing whether a serious offence has been, or is being,
committed; or
(b) The making, or proposed or possible making, of an order under
Part 2 or 3,
and, where the Attorney-General directs disclosure of information under this
subsection, the person shall disclose the information to the Attorney-General or a
constable nominated by the Attorney-General.
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62 Further disclosure of information and documents
(1) No person to whom information has been disclosed under section 61
shall further disclose the information except for the purposes of –
(a) The investigation of, or the prosecution, or proposed or possible
prosecution, of a person for a serious offence; or
(b) An investigation relating to proceedings, or proposed or possible
proceedings, for the making of an order under this Act or an
investigation relating to the making, or proposed or possible
making, of such an order.
(2) A person to whom information has been disclosed under subsection
(1) or this subsection shall not disclose the information to another person except
for the purposes referred to in subsection (1)(a) and (b).
(3) Where information is communicated to a person under section 61 or
subsection (1) or (2), the person –
(a) Shall not voluntarily give the information in evidence in a
proceeding before the Court other than a proceeding referred to in
subsection (1)(a) or (b); and
(b) Shall not be required to communicate the information to the Court.
(4) A person who discloses information in contravention of this section is
guilty of an offence punishable, on conviction, by a fine not exceeding 120 penalty
units or imprisonment for a period not exceeding 2 years, or both.
63 Evidential value of copies
Where any document is examined or provided pursuant to a direction under
section 61, the person by whom it is examined or to whom it is provided, or any
officer or person authorised for the purpose by the person in charge of the relevant
Government department or statutory body, may make or cause to be made one or
more copies of it and any copy purporting to be certified by the person in charge
of the relevant Government department or statutory body to be a copy made under
this section is evidence of the nature and content of the original document and
has the same probative force as the original document would have had if it had
been proved in the ordinary way.
64 Money laundering
PART 4
OFFENCES
(1) In this section “transaction” includes the receiving or making of a gift. (2) A person who engages in money laundering is guilty of an offence
punishable, on conviction, by –
(a) If the offender is a natural person – a fine not exceeding 1,200 penalty
units or imprisonment for period not exceeding 20 years, or both;
or
(b) If the offender is a body corporate – a fine not exceeding 10,000
penalty units.
(3) A person shall be taken to engage in money laundering if, and only if –
(a) The person engages, directly or indirectly, in a transaction that
involves money, or other property, that is proceeds of crime; or
(b) The person receives, possesses, conceals, disposes of or brings into
Niue any money, or other property that is proceeds of crime,
and the person knows, or ought reasonably to know, that the money or other
property is derived or realised, directly or indirectly, from some form of unlawful
activity.
Proceeds of Crime Act 1998
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65 Possession of property suspected of being proceeds of crime
(1) A person who receives, possesses, conceals, disposes of or brings into
Niue any money, or other property, that may reasonably be suspected of being
proceeds of crime is guilty of an offence punishable, on conviction, by –
(a) If the offender is a natural person – a fine not exceeding 200 penalty
units or imprisonment for a period not exceeding 2 years, or both;
or
(b) If the offender is a body corporate – a fine not exceeding 1000 penalty
units.
(2) It is a defence to a charge for an offence against this section, if the person
satisfies the Court that the person had no reasonable grounds for suspecting that
the property referred to in the charge was derived or realised, directly or indirectly,
from some form of unlawful activity.
66 Conduct by directors, servants or agents
(1) Where it is necessary, for the purposes of this Act, to establish the state
of mind of a body corporate in respect of conduct engaged in, or deemed by
subsection (2) to have been engaged in, by the body corporate, it is sufficient to
show that a director, servant or agent of the body corporate, being a director, servant
or agent by whom the conduct was engaged in within the scope or his or her
actual or apparent authority, had that state of mind.
(2) Any conduct engaged in on behalf of a body corporate –
(a) By a director, servant or agent of the body corporate within the
scope of his or her actual or apparent authority; or
(b) By any other person at the direction or with the consent or agreement
(whether express or implied) of a director, servant or agent of the
body corporate, where the giving of the direction, consent or
agreement is within the scope of the actual or apparent authority
of the director, servant, or agent,
shall be deemed, for the purposes of this Act, to have been engaged in by the body
corporate.
(3) Where it is necessary, for the purposes of this Act, to establish the state
of mind of a person in relation to conduct deemed by subsection (4) to have been
engaged in by the person, it is sufficient to show that a servant or agent of the
person, being a servant or agent by whom the conduct was engaged in within the
scope of his or her actual or apparent authority, had that state of mind.
(4) Conduct engaged in on behalf of a person other than a body corporate –
(a) By a servant or agent of the person within the scope of his or her
actual or apparent authority; or
(b) By any other person at the direction or with the consent or agreement
(whether expressed or implied) of a servant or agent of the first-
mentioned person, where the giving of the direction, consent or
agreement is within the scope of the actual or apparent authority
of the servant or agent,
shall be deemed, for the purposes of this Act, to have been engaged in by the first-
mentioned person.
(5) A reference in this section to the state of mind of a person includes a
reference to the knowledge, intention, opinion, belief or purpose of the person
and the person’s reasons for the person’s intention, opinion, belief or purpose.
1458 Niue Laws 2006 Vol 3
67 Standard of proof
PART 5
MISCELLANEOUS
Save as otherwise provided in this Act, any question of fact to be decided by the Court in proceedings under this Act is to be decided on the balance of probabilities.
68 Costs
Where –
(a) A person brings, or appears at, proceedings under this Act before a
Court in order –
(i) to prevent a forfeiture, confiscation or restraining order from
being made against property of the person; or
(ii) to have property of the person excluded from a forfeiture,
confiscation or restraining order;
(b) The person is successful in those proceedings; and
(c) The Court is satisfied that the person was not involved in any way
in the commission of the offence in respect of which the forfeiture,
confiscation or restraining order was sought or made,
the Court may order the Crown to pay all costs reasonably incurred by the person
in connection with the proceedings or such part of those costs as is determined by
the Court.
69 Non-liability of Financial Secretary
The Financial Secretary shall not be personally liable for any act done, or
omitted to be done, by him or her in the course of the performance of the Financial
Secretary’s functions under this Act.
70 Operation of other laws not affected
Nothing in this Act prejudices, limits or restricts –
(a) The operation of any other law which provides for the forfeiture of
property or the imposition of penalties or fines; or
(b) The remedies available to the Crown, apart from this Act, for the
enforcement of its rights and the protection of its interests; or
(c) Any power of search or any power to seize or detain property which
is exercisable by a constable apart from this Act.
71 Regulations
The Cabinet may make regulations prescribing matters –
(a) Required or permitted by this Act to be prescribed; or
(b) Necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
1459
PROPERTY LAW ACT 1952
1952/51 (NZ) – 1 January 1953
60 Alienation with intent to defraud creditors
61-62 [Repealed]
PART 5
COVENANTS AND POWERS
63 Benefit of covenants relating to land
64 Burden of covenants relating to land
65 Effect of covenant with 2 or more jointly
66 Covenants and agreements made by a
person with himself and others
66A Covenants and agreements made by a
person with himself
67 Covenants to be joint and several
68 Implied covenants may be negatived
69 Benefit of covenant for title
70-71 [Repealed]
14-30 [Repealed]
31 Release of part of land charged not to be
extinguishment of rent
32 Corporations may hold as joint tenants
33 Alienation of property may be restricted
33A Restrictions on ground of colour, race to
be void
34 Disclaimer of powers
35 Intermediate income of contingent or
executory gifts
36 Receipts for income by married infants
37 “Heirs” and other words interpreted
38 “Heirs of the body” and other words
interpreted
39 [Repealed]
40 Appointments valid notwithstanding
objects excluded
41-42 [Repealed]
PART 3
43-49 [Repealed]
PART 4
POWERS AND CONDITIONS OF SALE AND PROTECTION
OF PURCHASERS AND CREDITORS
50-59 [Repealed]
PART 6
COVENANTS IMPLIED IN CONVEYANCES
72 Covenants implied in conveyance by way
of sale
73 Covenants implied in conveyance subject
to encumbrance
74 Covenants implied in conveyance of term
of years
75 Covenants implied in conveyance by
trustees
PART 7
76-104 [Repealed]
PART 8
LEASES AND TENANCIES
General Provisions
105 Tenancy from year to year not to be
implied
106 Covenants implied in leases
107 Powers in lessor
108 Effect of licence to assign
109 No fine for licence to assign
110 Licence or consent not to be unreasonably
withheld
111 Merger of reversion not to affect remedies
112 Rent and benefit of lessee’s covenants to
run with reversion
1460 Niue Laws 2006 Vol 3
113 Obligation of lessor ’s covenants to run with reversion
114 Apportionment of conditions on severance
115 Restriction on effect of waiver
116 Executor not personally liable for
covenants
Relief Against Forfeiture
117 Interpretation
118 Restriction on and relief against forfeiture
119 Protection of underlessees on forfeiture
of superior leases
Relief Against Refusal to Grant Renewal
120 Relief of lessee against refusal of lessor to
grant a renewal or to assure the reversion
121 Limitation of time for application for relief
PART 9
EASEMENTS, RESTRICTIVE STIPULATIONS, AND
ENCROACHMENTs
122 Easement in gross permitted
123 Access or use of light or air
124-126 [Repealed]
127 Power for Court to modify or extinguish
easements and restrictive stipulations
128 Commissioner may authorise entry for
erecting or repairing buildings
129 Power of Court to grant special relief in
cases of encroachment
129A Relief in cases of mistake as to boundaries
or identity of land
PART 10
ASSIGNMENTS OF THINGS IN ACTION
139 Assignment of debts and things in action
PART 11
MARRIAGE SETTLEMENTS
131-132 [Repealed]
133 Sanction of Court to be obtained
PART 12
POWERS OF ATTORNEY
134 Execution by attorney in his own name
135 Continuance until notice of death or revocation received
136 Irrevocable power of attorney for value
137 Power of attorney made irrevocable for
fixed time
138 Conveyance under power of attorney
from person not in Niue
139 Application to corporations
PART 13
PARTITION OF LAND AND DIVISION OF CHATTELS
140 In action for partition Court may direct
land to be sold
141 Proceeds of sale, how applied
142 Costs in partition suits
143 Division of chattels
PART 14
APPORTIONMENT
144 Interpretation
145 Income apportionable in respect of time
146 Time when apportioned part payable
147 Recovery of apportioned parts
148 Exceptions and application
PART 15
149 [Repealed]
PART 16
RENTCHARGES AND OTHER ANNUAL SUMS
150 Recovery of annual sums charged on land
151 [Repealed]
PART 17
SERVICE OF NOTICES
152 Service of notices
PART 18
MISCELLANEOUS
153 [Repealed]
154 Protection of solicitors and trustees
155 [Spent]
Property Law Act 1952
To consolidate and amend certain enactments relating to property
1 Short title
This is the Property Law Act 1952.
1461
2 Interpretation
In this Act –
“conveyance” includes any deed of assignment, appointment, lease,
settlement, or other assurance by deed of any property; and “convey”
has a corresponding meaning;
“encumbrance” includes a mortgage in fee or for a less estate, and a trust
for securing money, and a lien, and a charge of a portion, annuity, or
other capital or annual sum; and “encumbrance: has a corresponding
meaning and includes every person entitled to the benefit of an
encumbrance or entitled to require payment or discharge thereof;
“executors” and “administrators” of a deceased person mean respectively
the persons to whom the right to administer the estate of the deceased
has been granted by the proper court, whether for general, special, or
limited purposes; and “executors” includes executors by right of
representation;
“income”, when used with reference to land, includes rents and profits;
“instrument” includes deed, will, Proclamation taking land, and Act of
Parliament;
“possession”, when used with reference to land, includes the receipt of
income from it;
“property” includes real and personal property, and any estate or interest
in any property real or personal and any debt, and anything in action,
and any other right or interest;
“purchaser” includes a lessee or mortgagee, or other person who for
valuable consideration takes or deals for any property; and “purchase”
has a corresponding meaning; but “sale” means only a sale properly so
called;
“rent” includes yearly or other rent, toll, duty, royalty, or other reservation
by the acre, the ton, or otherwise; and “fine” includes premium or
foregift, and any payment, consideration, or benefit in the nature of a
fine, premium, or foregift;
“will” includes codicil.
3 [Repealed by 2004/270]
PART 1
DEEDS AND OTHER INSTRUMENTS
4 Formalities of deed
(1) Every deed, whether or not affecting property, shall be signed by the
party to be bound by it and shall also be attested by at least 1 witness and, if the
deed is executed in Niue, the witness shall add to his signature his place of abode
and calling or description, but no particular form of words shall be requisite for
the attestation.
(2) Except where the party to be bound by a deed is a corporation, sealing
is not necessary.
(3) Formal delivery and indenting are not necessary in any case.
(4) Every deed executed as required by this section shall be binding on the
party purported to be bound by it.
1462 Niue Laws 2006 Vol 3
(5) Every deed, including a deed of appointment, executed before the commencement of this Act which is attested in the manner required or authorised by any enactment providing for the execution and attestation of deeds in force at the time of execution, or at any time subsequent to it, shall be deemed to be and to have been as valid and effectual as if it had been attested as required by this section.
5 Deed by corporation
Any deed that may be lawfully made by a corporation –
(a) To which the common or official seal of the corporation is affixed;
or
(b) Which is executed in the name of the corporation by any person
who has been appointed its attorney, and has at the time of execution
made a statutory declaration that he is the attorney of the
corporation acting under a power of attorney specified by him, and
that he has executed the deed under the powers by it conferred,
and that he has not at the time of making the declaration received
any notice of the revocation of the power of attorney by the
dissolution of the corporation or otherwise,
shall be deemed to have been duly executed by the corporation, and shall bind
the corporation; and all persons dealing in good faith without notice of any
irregularity shall be entitled to presume the regular and proper execution of the
deed, and to act accordingly.
6 Receipt for consideration money
An acknowledgement of the receipt of the consideration contained in the
body of a deed shall be as valid and effectual in all respects as if the same had also
been endorsed on it.
7 Person not named may take benefit
Any person may take an immediate benefit under a deed, although not
named as a party to it.
8 Construction of supplemental or annexed deed
A deed expressed to be supplemental to a previous deed, or directed to be
read as an annex to it, shall, as far as may be, be read and have effect as if the deed
so expressed or directed were made by way of endorsement on the previous deed,
or contained a full recital thereof.
9 Exercise of powers
Where a power of appointment by deed or writing, otherwise than by will,
is exercised by deed executed in the manner required by this Act, the deed shall
be deemed to be a valid exercise of the power, notwithstanding that by the
instrument creating the power some additional or other form of execution is
required.
10 Partitions, exchanges
No partition, exchange, lease, assignment, or surrender (otherwise than by
operation of law) of any land shall be valid at law unless the same is made by
deed, except a lease for a term not exceeding a tenancy of 1 year, which lease may
be made either by writing or by parol.
Property Law Act 1952
1463
11 Appointments
No appointment to be made by deed or writing (otherwise than by will) in
exercise of a power shall be valid unless the same is executed as a deed is hereby
required to be executed.
12 Disclaimers
No disclaimer of any land shall be valid unless the same is made by deed
or by matter of record.
13 [Repealed by 2004/270]
PART 2
GENERAL RULES AFFECTING PROPERTY
14-23 [Repealed by 2004/270]
24-25 [Repealed]
26 [Repealed by 2004/270]
27 [Repealed by s 5 of the Simultaneous Deaths Act 1958]
28-30 [Repealed by 2004/270]
31 Release of part of land charged not to be extinguishment of rent
(1) The release from a rent of any part of the land out of which it is payable
shall not be a discharge of the residue of the land from the rent.
(2) Where the owner of the part released is not the owner of the residue of
the land charged with the rent, the owner of the residue shall be entitled to the
same contribution from the owner of the part released as he would have been
entitled to if no release had been made.
32 Corporations may hold as joint tenants
(1) (a) A body corporate shall be capable of acquiring and holding any
property in joint tenancy in the same manner as if it were an
individual, and where a body corporate and an individual or 2 or
more bodies corporate become entitled to any property under
circumstances or by virtue of any instrument which would, if the
body corporate had been an individual, have created a joint tenancy
they shall be entitled to the property as joint tenants.
(b) The acquisition and holding of property by a body corporate in
joint tenancy shall be subject to the like conditions and restrictions
as attach to the acquisition and holding of property by a body
corporate in severalty.
(2) Where a body corporate is a joint tenant of any property, then on its
dissolution the property shall devolve on the other joint tenant.
33 Alienation of property may be restricted
(1) It shall be lawful by will, or by a settlement made on marriage, to
provide that any estate or interest in any property comprised in the will or
settlement devised, bequeathed, settled, or given to any beneficiary, whether male
or female, shall not during the life of that beneficiary be alienated, or pass by
bankruptcy, or be liable to be seized, sold, attached, or taken in execution by process
of law.
1464 Niue Laws 2006 Vol 3
(2) [Repealed 2/121/1971 (NZ)]
(3) Nothing in this section shall prevent any lawful restraint on alienation
of property from being imposed by will or settlement.
(4) The Court may in any case where it appears to be for the benefit of the
person subject to any restraint on alienation either wholly or partly remove the
restraint.
33A Restrictions on ground of colour, race to be void
(1) Any provision in or in connection with any disposition of property
(whether oral or in writing) made after the commencement of this section shall be
void to the extent that its effect would be to prohibit or restrict the transfer,
assignment, letting, subletting, charging, or parting with the possession of the
property or any part of it, by any party to the disposition or his successor in title,
to any person by reason only of the colour, race, or ethnic or natural origins of that
person or of any member of his family.
(2) For the purposes of this section, “disposition” means –
(a) A sale, lease or letting, sublease or subletting, or licence; or
(b) A mortgage; or
(c) An agreement for any such disposition.
(3) This section shall bind the Crown.
34 Disclaimer of powers
(1) A person to whom is given any power, whether coupled with an interest
or not, may by deed release or contract not to exercise the power.
(2) Any such person as aforesaid may by deed disclaim any such power,
and after disclaimer shall not be capable of exercising or joining in the exercise of
the power.
(3) On any such disclaimer the power may be exercised by the other or
others, or the survivors or survivor of the others, of the persons to whom the
power is given, unless the contrary is expressed in the instrument creating the
power.
35 Intermediate income of contingent or executory gifts
(1) A contingent or future specific or residuary devise or bequest of
property, and a specific or residuary devise or bequest of property upon trust for
a person whose interest is contingent or executory, shall, subject to the statutory
provisions relating to accumulations, carry the intermediate income of that
property from the death of the testator except so far as the income or any part of it
may be otherwise expressly disposed of.
(2) Where under an instrument other than a will property stands limited
to a person for a contingent or future interest, or stands limited to trustees upon
trust for a person whose interest is contingent or executory, that interest shall,
subject to the statutory provisions relating to accumulations, carry the intermediate
income of that property from the time when the instrument comes into operation,
except so far as the income or any part of it may be otherwise expressly disposed
of.
36 Receipts for income by married infants
A married infant shall have power to give valid receipts for all income
(including statutory accumulations of income made during the minority) to which
the infant may be entitled in like manner as if the infant were of full age.
Property Law Act 1952
1465
37 “Heirs” and other words interpreted
(1) Where under the terms of any instrument coming into operation after
the commencement of this Act any property vests in –
(a) The heir or heirs of any person; or
(b) The next of kin of any person; or
(c) The next of kin of any person to be determined under the
Administration Act 1969 –
the property shall vest in the persons who on the death of the person intestate
would be beneficially entitled to his real and personal estate under the said last-
mentioned Act, and in the same shares.
(2) This section applies only if and so far as a contrary or other intention is
not expressed in the instrument, and shall have effect subject to the terms of the
instrument and to the provisions it contains.
38 “Heirs of the body” and other words interpreted
(1) Where under the terms of any instrument any property vests in –
(a) The heir or heirs of the body of any person; or
(b) The heir or heirs male of any person, or the heir or heirs male of the
body of any person; or
(c) The heir or heirs female of any person, or the heir or heirs female of
the body of any person, –
the property shall vest as follows –
In case (a) in the issue of that person as tenants in common
per stirpes; and
In case (b) in the sons and issue of sons of that person as tenants in common
per stirpes; and
In case (c) in the daughters and the issue of daughters of that person as
tenants in common per stirpes.
(2) This section applies only if and so far as a contrary or other intention is
not expressed in the instrument, and shall have effect subject to the terms of the
instrument and to the provisions it contains.
39 [Repealed]
40 Appointments valid notwithstanding objects excluded
(1) An appointment in exercise of any power to appoint any property
amongst several objects shall be valid and effectual notwithstanding that any 1 or
more of the objects do not by the appointment or in default of appointment take a
share or shares of the property.
(2) Nothing in this section shall prejudice or affect any provision in any
instrument creating any power which declares the amount of the share or shares
from which no object of the power shall be excluded, or some one or more object
or objects shall not be excluded.
41-42 [Repealed]
1466 Niue Laws 2006 Vol 3
43-49 [Repealed by 2004/270]
PART 3
PART 4
POWERS AND CONDITIONS OF SALE AND PROTECTION OF PURCHASERS AND CREDITORS
50-52 [Repealed by 2004/270]
53 [Repealed]
54-59 [Repealed by 2004/270]
60 Alienation with intent to defraud creditors
(1) Save as provided by this section, every alienation of property with intent
to defraud creditors shall be voidable at the instance of the person prejudiced.
(2) This section does not affect the law of bankruptcy for the time being in
force.
(3) This section does not extend to any estate or interest in property
alienated to a purchaser in good faith not having at the time of the alienation, notice of the intention to defraud creditors.
61-62 [Repealed by 2004/270]
PART 5
COVENANTS AND POWERS
63 Benefit of covenants relating to land
(1) A covenant, whether express or implied under this or any other Act,
relating to any land of the covenantee shall, unless a contrary intention is expressed,
be deemed to be made with the covenantee and his successors in title and the
persons deriving title under him or them, and, subject as aforesaid, shall have
effect as if those successors and other persons were expressed.
(2) For the purposes of this section in connection with covenants restrictive
of the user of land, “successors in title” shall be deemed to include the owners
and occupiers for the time being of the land of the covenantee intended to be
benefited.
64 Burden of covenants relating to land
(1) A covenant, whether express or implied under this or any other Act,
relating to any land of a covenantor or capable of being bound by him by covenant
shall, unless a contrary intention is expressed, be deemed to be made by the
covenantor on behalf of himself and his successors in title and the persons deriving
title under him or them, and, subject as aforesaid, shall have effect as if those
successors and other persons were expressed.
(2) This section extends to a covenant to do some act relating to the land,
notwithstanding that the subject-matter may not be in existence when the covenant
is made.
(3) For the purposes of this section in connection with covenants restrictive
of the user of land, “successors in title” shall be deemed to include the owners
and occupiers for the time being of the land.
Property Law Act 1952
1467
65 Effect of covenant with 2 or more jointly
(1) A covenant, whether express or implied under this or any other Act,
and a contract by deed, and a bond or obligation by deed, made with 2 or more
jointly, to pay money, or to make a conveyance, or to do any other act to them or
for their benefit, shall be deemed to include, and shall by virtue of this Act imply,
an obligation to do the act to or for the benefit of the survivor or survivors of
them, and to or for the benefit of any other person on whom devolves the right to
sue on the covenant, contract, bond, or obligation.
(2) This section applies only to a covenant, contract, bond, or obligation
made expressly or by implication on or after 1 January 1906 and then only in so
far as a contrary intention is not expressed in the deed containing the covenant or
contract, or in the bond or obligation, and shall have effect subject to its provisions.
66 Covenants and agreements made by a person with himself and others
A covenant, whether express or implied under this or any other Act, or an
agreement made by a person with himself and another or others, shall be construed
and be capable of being enforced in like manner as if the covenant or agreement
had been made with the other or others.
66A Covenants and agreements made by a person with himself
A covenant (whether express or implied under this or any other Act), or an
agreement, made by a person with himself as an incident of or with respect to or
for the purpose of any conveyance or mortgage of property under section 47,
shall be capable of being enforced in like manner as if the covenant or agreement
had been made by that person with another person.
67 Covenants to be joint and several
Where under a covenant, whether express or implied under this or any
other Act, more persons than one are covenantors, the covenant shall, unless a
contrary intention is expressed, be deemed to bind the covenantors and any 2 or
greater number of them jointly and each of them severally.
68 Implied covenants may be negatived
(1) A covenant or power implied under this or any other Act shall have
the same force and effect, and may be enforced in the same manner, as if it had
been set out at length in the deed wherein it is implied.
(2) Any such covenant or power may be negatived, varied or extended in
the deed, or by a memorandum in writing endorsed on it and executed as a deed
is required to be executed by the parties to the deed intended to be bound by it.
69 Benefit of covenant for title
The benefit of a covenant for title implied under this or any other Act shall
be annexed and incident to and shall go with the estate and interest of the implied
covenantee, and may be enforced by any person in whom that estate or interest is,
for the whole or any part of it vested.
70-71 [Repealed by 2004/270]
1468
72
Niue Laws 2006 Vol 3
PART 6
COVENANTS IMPLIED IN CONVEYANCES
Covenants implied in conveyance by way of sale
(1) In every conveyance by way of sale, mortgage, marriage settlement, or
lease and in every other conveyance for valuable consideration, there shall be implied (except as provided by section 75) the following covenants by the person or each of the persons who conveyans, so far as regards the estate or interest expressed to be conveyed by him, with the person to whom the conveyance is made, or with the person jointly to whom the conveyance is made as joint tenants or with each of the persons to whom the conveyance is made as tenants in common, that is to say –
(a) A covenant for right to convey, meaning a covenant that the
conveying party has good right and full power to convey and assure
the estate or interest purported to be conveyed, and that free and
clear from all encumbrances other than such as are mentioned in
the conveyance;
(b) A covenant for quiet enjoyment, meaning a covenant that the party
to whom the estate or interest is purported to be conveyed, and all
persons claiming under him, shall quietly enjoy the same without
any disturbance by any person;
(c) A covenant for further assurance, meaning a covenant that the
conveying party, his executors or administrators, and all other
persons having or claiming any interest in the subject-matter of the
conveyance, will, at the cost of the person requiring the same, do
and execute all such acts and conveyances for the better assuring
of the estate or interest purported to be conveyed by it as may be
reasonably required by the party to whom the same is conveyed or
any person claiming under him;
(d) A covenant for production of title deeds, meaning a covenant that
the conveying party, his executors, administrators, or assigns, at
the request and cost of the grantee, his executors, administrators or
assigns, will, unless prevented by fire or other inevitable accident,
produce to him or them, or as he or they may direct, within Niue
all registered deeds and instruments or evidences of title in the
possession of the conveying party, and relating to the land conveyed
as well as to other land; and also that the conveying party, his
executors, administrators, and assigns, will, unless prevented as
aforesaid, keep the said deeds and instruments or evidences of title
in the meantime safe, whole, and uncancelled. This covenant shall
run with the land, so as to bind only the person for the time being
entitled to the possession of the deeds, instruments, or evidences
of title.
(2) The covenants for right to convey, for quiet enjoyment, and for further
assurance shall, except in the case of a mortgage, be restricted to the acts, deeds
and defaults of the conveying party, and of all persons through whom he derives
title otherwise than by purchase for value, and of all persons claiming or to claim
through, under, or in trust for him, or through or under any persons through
whom he derives title as aforesaid.
(3) The costs of any further assurance or production of title deeds required
by a mortgagee under the implied covenants in that behalf shall during the
continuance of the mortgage be borne by the mortgagor.
Property Law Act 1952
1469
(4) The covenant for quiet enjoyment shall not be implied against any mortgagor until default in payment of the principal moneys secured by the mortgage at the time fixed for the repayment of it, or in payment of interest on it, or until breach of any covenant by the mortgagor contained or implied in the mortgage; and until such default or breach as aforesaid it shall not be lawful for a mortgagee to enter into possession of the mortgaged land.
73 Covenants implied in conveyance subject to encumbrance
(1) In every conveyance by way of sale subject to an encumbrance there
shall be implied a covenant by the person to whom the property is conveyed with
the person making the conveyance to pay the moneys or perform the obligations
secured by the encumbrance, and to perform ad observe the covenants and
provisions of the encumbrance, and to keep harmless and indemnified the person
making the conveyance in respect of all such moneys, obligations, covenants, and
provisions.
(2) This section applies only in so far as a contrary intention is not expressed
in the conveyance, and shall have effect subject to the provisions of the conveyance.
74 Covenants implied in conveyance of term of years
In every conveyance of a term of years in land by way of sale or marriage
settlement, and in every other conveyance of a term of years in land for valuable
consideration, not being by way of mortgage, there shall be implied (except as
provided by section 75) the following covenants by each conveying party severally,
for himself, his executors and administrators, to the extent of the interest parted
with by him, but restricted to the acts, deeds, and defaults of the conveying party,
and of all persons through whom he derives title otherwise than by purchase for
value, and of all persons claiming through, under, or in trust for him, them, or any
of them, that is to say –
That the rent reserved by the lease under which the land is held, and the
covenants and conditions expressed or implied in the lease and to be performed
and observed by the lessee, have been respectively paid, performed, and observed
up to the date of the conveyance.
75 Covenants implied in conveyance by trustees
(1) Where any person conveys as trustee or mortgagee, or as executor or
administrator of a deceased person, or as manager of a mentally disordered person,
when appointed or acting as manager of a mentally disordered person’s estate or
where any person conveys under an order of the Court, or in a fiduciary capacity,
the covenants set out in section 72(1)(a),(b) and (c) and in section 74 shall not be
implied, but there shall be implied the following covenant on the part of the person
conveying, which covenant shall be deemed to extend to his own acts only,
namely –
That he has not executed or done, or knowingly suffered, or been party or
privy to, any deed or thing whereby or by means whereof the subject-matter of
the conveyance or any part of it is or may be impeached, charged, affected, or
encumbered in title, estate, or otherwise, or whereby or by means whereof he is in
any wise hindered from conveying the subject-matter of the conveyance or any
part of it in the manner in which it is expressed to be conveyed.
(2) The covenant implied by this section shall be deemed to be implied in
every memorandum of discharge endorsed on or annexed to a mortgage in the
same manner as if the memorandum were a deed of conveyance by the mortgagee.
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76-104 [Repealed by 2004/270]
PART 7
PART 8
LEASES AND TENANCIES
General Provisions
105 Tenancy from year to year not to be implied
No tenancy from year to year shall be created or implied by payment of
rent; and if there is a tenancy it shall be deemed in the absence of proof to the
contrary to be a tenancy determinable at the will of either of the parties by one
month’s notice in writing.
106 Covenants implied in leases
In every lease of land there shall be implied the following covenants by the
lessee, for himself, his executors, administrators, and assigns:
(a) That he or they will pay the rent thereby reserved at the time therein
mentioned:
Provided that in case the demised premises or any part of it shall at any time
during the continuance of the lease, without neglect or default of the lessee, be
destroyed or damaged by fire, flood, lightning, storm, tempest or earthquake so
as to render the same unfit for the occupation and use of the lessee, then and so
often as the same shall happen, the rent thereby reserved, or a proportionate part
of it, according to the nature and extent of the damage, shall abate, and all or any
remedies for the recovery of the rent or the proportionate part of it shall be
suspended until the demised premises shall have been rebuilt or made fit for the
occupation and use of the lessee, and in the case of any dispute arising under this
proviso the same shall be referred to arbitration under the Arbitration Act 1908:
(b) That he or they will, at all times during the continuance of the said
lease, keep, and at the termination of it, yield up, the demised
premises in good and tenantable repair, having regard to their
condition at the commencement of the said lease, accidents and
damage from fire, flood, lightning, storm, tempest, earthquake and
fair wear and tear (all without neglect or default of the lessee)
excepted.
107 Powers in lessor
In every lease of land there shall be implied the following powers in the
lessor, his executors, administrators, or assigns:
(a) That he or they may, by himself or themselves, or his or their agents,
at all reasonable times, enter upon the demised premises and view
the state of repair of it, and may serve upon the lessee, his executors,
administrators or assigns, a notice in writing of any defect, requiring
him or them, within a reasonable time, to be prescribed in it, to
repair the same under the covenant in that behalf contained or
implied in the lease;
(b) That whenever the rent reserved is in arrear he or they may levy
the same by distress;
(c) That whenever the rent or any part of it whether legally demanded
or not, is in arrear for the space of 1 month, or whenever the lessee
has failed to perform or observe any of the covenants, conditions
or stipulations contained or implied in the lease, and on the part of
the lessee to be performed or observed, he or they may re-enter the
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demised premises (or any part of it in the name of the whole) and thereby determine the estate of the lessee, his executors, administrators, or assigns in it, but without releasing him or them from liability in respect of the breach or non-observance of any such covenant, condition, or stipulation.
108 Effect of licence to assign
A condition or covenant not to assign or underlet or to do any other act
without licence shall not be released or determined by any such licence.
109 No fine for licence to assign
(1) In all leases containing a covenant, condition, or agreement that the
lessee shall not, without the licence or consent of the lessor, assign, underlet, part
with the possession, or dispose of the demised premises or any part of it, that
covenant, condition, or agreement shall, unless the lease contains an express
provision to the contrary, be deemed to be subject to a proviso to the effect that no
fine or sum of money in the nature of a fine shall be payable for or in respect of
any such licence or consent; but this proviso shall not preclude the right to require
the payment of a reasonable sum in respect of any legal or other expenses incurred
in relation to the licence or consent.
(2) Neither the assignment or underletting of any leasehold by the assignee
of a bankrupt, or by the liquidator of a company, or by the Sheriff under an
execution, nor the bequest of a leasehold, shall be deemed to be a breach of any
such covenant, condition or agreement, unless the contrary is expressly declared
in the lease.
(3) For the purposes of this section, terms defined in section 117 have the
meanings assigned to them by that section.
110 Licence or consent not to be unreasonably withheld
(1) In all leases, whether made before or after the commencement of this
Act, containing a covenant, condition, or agreement against assigning, underletting,
charging, or parting with the possession of demised premises or any part of it
without licence or consent, that covenant, condition, or agreement shall,
notwithstanding any express provision to the contrary, be deemed to be subject to
a proviso to the effect that the licence or consent is not to be unreasonably withheld,
but this proviso does not preclude the right of the landlord to require payment of
a reasonable sum in respect of any legal or other expenses incurred in connection
with any such licence or consent.
(1A) For the purposes of this section, a licence or consent shall be treated
as unreasonably withheld if it is withheld by reason only of the colour, race, or
ethnic or national origins of any person.
(2) In this section “lease” has the same meaning as in section 117.
111 Merger of reversion not to affect remedies
Where the reversion of land subject to a lease is merged in any remainder
or other reversion, or future estate, the person entitled to the estate into which the
reversion has merged and his executors or administrators, shall have the same
remedy for non-performance or non-observance of the conditions or covenants
expressed or implied in the lease as the person who would for the time being have
been entitled to the mesne reversion so merged would have had.
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112 Rent and benefit of lessee’s covenants to run with reversion
(1) Rent reserved by a lease, and the benefit of every covenant or provision
in it having reference to the subject-matter thereof, and on the lessee’s part to be
observed or performed, and every condition of re-entry and other condition in it,
shall be annexed and incident to and shall go with the reversionary estate in the
land or in any part of it immediately expectant on the term granted by the lease,
notwithstanding severance of that reversionary estate, and may be recovered,
received, enforced, and taken advantage of by the person entitled, subject to the
term, to the income of the whole or any part, as the case may require, of the land
leased. This subsection extends to a covenant to do some act relating to the land,
notwithstanding that the subject-matter may not be in existence when the covenant
is made.
(2) The benefit of every condition of re-entry or forfeiture for a breach of
any covenant or condition contained in a lease shall be capable of being enforced
and taken advantage of by the person entitled, subject to the term, to the income
of the whole or any part, as the case may require, of the land leased, although that
person became, by conveyance or otherwise, so entitled after the condition of re
entry or forfeiture had become enforceable.
(3) This section shall not render enforceable any condition of re-entry or
other condition waived or released before that person became entitled as aforesaid.
113 Obligation of lessor’s covenants to run with reversion
The obligation of a covenant entered into by a lessor with reference to the
subject-matter of the lease shall, in so far as the lessor has power to bind the
reversionary estate immediately expectant on the term granted by the lease, be
annexed and incident to and shall go with that reversionary estate or the several
parts of it, notwithstanding severance of that reversionary estate, and may be
taken advantage of and enforced by the person in whom the term is vested by
conveyance, devolution in law, or otherwise; and, in so far as the lessor has power
to bind the person entitled to that reversionary estate, the obligation aforesaid
may be taken advantage of and enforced against any person so entitled.
114 Apportionment of conditions on severance
Notwithstanding the severance by conveyance, surrender, or otherwise of
the reversionary estate in any land comprised in a lease, and notwithstanding the
avoidance or cesser in any other manner of the term granted by a lease as to part
only of the land comprised therein, every condition or right of re-entry, and every
other condition in the lease, shall be apportioned and shall remain annexed to the
several parts of the reversionary estate so severed, and shall be in force with respect
to the term whereon each severed part is reversionary, or the term in any land that
has not been surrendered, or as to which the term has not been avoided or has not
otherwise ceased, in like manner as if the land comprised in each severed part, or
the land as to which the term remains subsisting, as the case may be, had been the
only land comprised in the lease.
115 Restriction on effect of waiver
Where any actual waiver of the benefit of any covenant or condition in any
lease on the part of any lessor or his executors, administrators or assigns is proved
to have taken place on or after 1 January 1906 in any one particular instance, that
actual waiver shall not be deemed to extend to any instance or any breach of
covenant or condition other than that to which the waiver specially relates, or to
be a general waiver of any such covenant or condition, unless an intention to that
effect appears.
Property Law Act 1952
1473
116 Executor not personally liable for covenants
An executor or administrator shall not be personally liable on any covenant
entered into by a testator or intestate as a lessee of land, any rule of law
notwithstanding.
117 Interpretation
Relief Against Forfeiture
For the purposes of sections 118 and 119 –
“bankruptcy” does not include the voluntary winding up of any solvent
company;
“lease” includes an original or derivative underlease, a grant securing a
rent by condition, and an agreement for a lease where the lessee has
become entitled to have his lease granted;
“lessee” includes an original or derivative underlessee, a grantee under
any such grant as aforesaid, a person entitled under an agreement as
aforesaid, and the executors, administrators, and assigns of a lessee;
“lessor” includes an original or derivative underlessor, a grantor as
aforesaid, a person bound to grant a lease under an agreement as
aforesaid, and the executors, administrators, and assigns of a lessor;
“underlease” includes an agreement for an underlease where the
underlessee has become entitled to have his underlease granted;
“underlessee” includes any person deriving title through or from an
underlessee.
118 Restrictions on and relief against forfeiture
(1) A right of re-entry or forfeiture under any proviso or stipulation in a
lease, for a breach of any covenant, condition, or agreement in the lease, shall not
be enforceable by action or otherwise unless and until the lessor serves on the
lessee a notice specifying the particular breach complained of, and, if the breach is
capable of remedy, requiring the lessee to remedy the breach, and in any case
requiring the lessee to make compensation in money for the breach, and the lessee
fails within a reasonable tie after it to remedy the breach, if it is capable of remedy,
and to make reasonable compensation therefor in money to the satisfaction of the
lessor.
(1A)(a) Where the lease in respect of which such a notice has been served on the lessee has been mortgaged and the lessor has actual notice of the name and address of the mortgagee, he shall forthwith after serving the notice on the lessee serve a copy of the notice on the mortgagee.
(b) Failure to comply with this subsection shall not of itself prevent the exercise by the lessor of any right of re-entry or forfeiture under any proviso or stipulation in the lease.
(2) Where a lessor is proceeding by action or otherwise to enforce such a right of re-entry or forfeiture, or has re-entered without action, the lessee may, in the lessor ’s action (if any), or in any action brought by himself, or by proceeding otherwise instituted, apply to the Court for relief; and the Court, having regard to the proceedings and conduct of the parties under the foregoing provisions of this section, and to all the circumstances of the case, may grant or refuse relief as it thinks fit; and in case of relief may grant the same on such terms (if any) as to costs, expenses, damages, compensation, penalty, or otherwise, including the granting of an injunction to restrain any like breach in the future, as the Court in the circumstances of each case thinks fit.
1474 Niue Laws 2006 Vol 3
(3) Where any such relief as aforesaid is granted, the Court shall direct a minute or record of it to be made on the lease or otherwise.
(4) This section applies although the proviso or stipulation under which the right of re-entry or forfeiture accrues is inserted in the lease in pursuance of the directions of any Act.
(5) For the purposes of this section a lease limited to continue so long as
the lessee abstains from committing a breach of any covenant, condition, or
agreement shall be and take effect as a lease to continue for any longer term for
which it could subsist, but determinable by a proviso for re-entry on such a breach.
(6) This section does not extend to a condition for forfeiture on the taking
in execution of the lessee’s interest.
(7) Except in a case where the lessee is bankrupt this section shall not affect
the law relating to re-entry or forfeiture in case of non-payment of rent.
(8) This section shall have effect notwithstanding any stipulation to the
contrary.
119 Protection of underlessees on forfeiture of superior leases
Where a lessor is proceeding, by action or otherwise, to enforce a right of
re-entry or forfeiture under any covenant, proviso, or stipulation in a lease, the
Court may, on application by any person claiming as underlessee any estate or
interest in the property comprised in the lease, or any part of it either in the lessor ’s
action (if any) or in any action brought by that person for that purpose, make an
order vesting, for the whole term of the lease or any less term the property
comprised in the lease, or any part of it in any person entitled as underlessee to
any estate or interest in that property, upon such conditions as to execution of any
deed or other document, payment of rent, costs, expenses, damages, compensation,
the giving of security, or otherwise as the Court in the circumstances of each case
thinks fit; but in no case shall any such under lessee be entitled to require a lease
to be granted to him for any longer term than he had under his original underlease.
Relief Against Refusal to Grant Renewal
120 Relief of lessee against refusal or lessor to grant a renewal or to assure
the reversion
(1) In this section, “lease”, “lessee”, and “lessor” have the same meanings
as in section 117.
(2) This section applies to leases made and shall have effect with respect to
any lease notwithstanding any stipulation to the contrary and notwithstanding
the expiry of the term of the lease.
(3) Where –
(a) By any lease to which this section applies the lessor has covenanted
or agreed with the lessee that, subject to the performance or
fulfilment of certain covenants, conditions, or agreements by the
lessee, the lessor will –
(i) on the expiry of the lease grant to the lessee a renewal of the
lease or a new lease of the demised premises; or
(ii) whether upon the expiry of the lease or at any time previous to
it assure to the lessee that lessor ’s reversion expectant on the
lease; and
(b) The lessor has refused to grant that renewal or that new lease or to
assure that reversion, as the case may be, on the ground that the
lessee has failed to perform or fulfil the said covenants, conditions,
and agreements, or any of them –
the lessee may in any action or by proceeding otherwise instituted, apply to the
Court for relief.
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(4) The Court, having regard to all the circumstances of the case, may grant or refuse relief as it thinks fit, and in particular may decree, order, or adjudge –
(a) That the lessor shall grant to the lessee a renewal of his lease or a new lease, as the case may require; or
(b) That the lessor ’s covenant or agreement to assure the reversion ought to be specifically performed and carried into execution, and that the lessor shall execute such assurances as the Court thinks proper for that purpose –
on the same terms and conditions in all respects as if all the covenants, conditions,
and agreements aforesaid had been duly performed and fulfilled.
(5) The Court may grant relief on such terms, if any, as to costs, expenses,
damages, compensation, penalty, or otherwise as the Court in the circumstances
of each case thinks fit.
(6) Failure by the lessee to give to the lessor notice of his intention to require
or to accept a renewal of a lease or a new lease or an assurance of the lessor ’s
reversion, as the case may be, within the time or in the manner, if any, prescribed
by the original lease shall not limit the rights of the lessee or the powers of the
Court under this section.
(7) The fact that the lessor may have granted any estate or interest in the
demised land to any person other than the lessee, which estate or interest would
be defeated or prejudicially affected by the grant of relief to the lessee, shall not
affect the power of the Court under this section, but in any such case the Court
may, if it thinks just, grant relief to the lessee and cancel or postpone any such
estate or interest and may, if it thinks fit, assess damages or compensation to be
paid to that person in respect of the defeat of or prejudicial effect upon the estate
or interest. Any damages or compensation to be paid under this subsection shall
as the Court may determine be payable either by the lessor or by the lessee, or
partly by the lessor and partly by the lessee in proportions to be fixed by the
Court.
121 Limitation of time for application for relief
(1) Application for relief under section 120 may be made at any time within
3 months after the refusal of the lessor to grant a renewal of the lease or to grant a
new lease or to assure the reversion, as the case may be, has been first
communicated to the lessee.
(2) For the purposes of the subsection (1), communication to the lessee of
notice in writing of the lessor ’s intention to refuse at the appropriate time to grant
a renewal of a lease or to grant a new lease or to assure the reversion shall be
deemed to be equivalent to communication of his refusal to grant the renewal or
new lease or to assure the reversion, and in any case where notice of intention is
so given the period of limitation fixed by subsection (1) shall begin to run from
the date of the communication of the notice accordingly.
PART 9
EASEMENTS, RESTRICTIVE STIPULATIONS AND ENCROACHMENTS
122 Easement in gross permitted
An easement over land may be created without being attached or made
appurtenant to other land, and such an easement shall run with and bind the land
over which it is created, and all persons claiming title to that land by, through, or
under the person creating the easement; and the easement so created shall be to
all intents and purposes an incorporeal hereditament, and shall be assignable
accordingly.
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123 Access or use of light or air
Except as herein provided, no tenement shall become servient to any other
in respect of the access of either light or air, and no person shall have or acquire by
prescription, grant, or otherwise any claim or right to the access of light or air to
any land or building from or over the land of any other person.
124-126 [Repealed by 2004/270]
127 Power for Court to modify or extinguish easements and restrictive stipulations
(1) Where land is subject to an easement or to a restriction arising under covenant or otherwise as to the user of it, the Court may on the application of any person interested in the land, by order modify or wholly or partially extinguish the easement or restriction upon being satisfied –
(a) That by reason of any change in the user of any land to which the
easement or the benefit of the restriction is annexed, or in the
character of the neighbourhood or other circumstances of the case
which the Court may deem material, the easement or restriction
ought to be deemed obsolete, or that the continued existence of it
would impede the reasonable use of the land subject to the easement
or restriction without securing practical benefit to the persons
entitled to the easement or to the benefit of the restriction, or would,
unless modified, so impede any such user; or
(b) That the persons of full age and capacity for the time being or from
time to time entitled to the easement or to the benefit of the
restriction, whether in respect of estates in fee simple or any lesser
estates or interests in the land to which the easement or the benefit
of the restriction is annexed, have agreed to the easement or
restriction being modified or wholly or partially extinguished, or
by their acts or omissions may reasonably be considered to have
abandoned the easement wholly or in part; or
(c) That the proposed modification or extinguishment will not
substantially injure the persons entitled to the benefit of that
restriction.
(2) Where any proceedings by action or otherwise are instituted to enforce
an easement or restriction, or to enforce any rights arising out of a breach of any
restriction, any person against whom the proceedings are instituted may in those
proceedings apply to the Court for an order under the section.
(3) The Court may on the application of any person interested make an
order declaring whether or not in any particular case any land is affected by an
easement or restriction and the nature and extent of it, and whether the same is
enforceable, and, if so, by whom.
(4) [Repealed by 2004/270]
(5) An order under this section shall, when registered as in this section
provided, be binding on all persons, whether of full age or capacity or not, then
entitled or thereafter becoming entitled to the easement, or interested in enforcing
the restriction, and whether those persons are parties to the proceedings or have
been served with notice or not.
(6) –
(7) [Repealed by 2004/270]
(8) In the case of other land a memorandum of the order shall be endorsed
on such of the instruments of title as the Court directs.
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1477
128 Commissioner may authorise entry for erecting or repairing buildings
(1) The owner of any land may at any time apply to a Commissioner for
an order authorising him, or any person authorised by him in writing on that
behalf, to enter upon any adjoining land for the purpose of erecting, repairing,
adding to, or painting the whole or any part of any building, wall, fence, or other
structure on the applicant’s land, and to do on the land so entered upon such
things as may reasonably be considered necessary for any such purpose as
aforesaid.
(2) On any such application the Commissioner may make such an order
as the Commissioner thinks fit, and may make such order subject to such terms
and conditions as are thought fit.
129 Power of Court to grant special relief in cases of encroachment
(1) Where any building on any land encroaches on any part of any adjoining
land (that part being referred to in this section as the piece of land encroached
upon), whether the building was erected by the owner of the first-mentioned land
(in this section referred to as the encroaching owner) or by any of his predecessors
in title, either the encroaching owner or the owner of the piece of land encroached
upon may apply to the Court, whether in any action or proceeding then pending
or in progress and relating to the piece of land encroached upon or by an originating
application, to make an order under this section in respect of that piece of land.
(2) If it is proved to the satisfaction of the Court that the encroachment
was not intentional and did not arise from gross negligence, or, where the building
was not erected by the encroaching owner, if in the opinion of the Court it is just
and equitable in the circumstances that relief should be granted to the encroaching
owner or any other person, the Court, without ordering the encroaching owner or
any other person to give up possession of the piece of land encroached upon or to
pay damages, and without granting an injunction, may make an order –
(a) Vesting in the encroaching owner or any other person any estate or
interest in the piece of land encroached upon; or
(b) Creating in favour of the encroaching owner or any other person
any easement over the piece of land encroached upon; or
(c) Giving the encroaching owner or any other person the right to retain
possession of the piece of land encroached upon.
(3) Where the Court makes any order under this section, the Court may, in
the order, declare any estate or interest so vested to be free from any mortgage or
other encumbrance affecting the piece of land encroached upon, or vary, to such
extent as it considers necessary in the circumstances, any mortgage, lease, or
contract affecting or relating to that piece of land.
(4) Any order under this section, or any provision of any such order, may
be made upon and subject to such terms and conditions as the Court thinks fit,
whether as to the payment by the encroaching owner or any other person of any
sum or sums of money, or the execution by the encroaching owner or any other
person of any mortgage, lease, easement, contract or other instrument, or otherwise.
(5) Every person having any estate or interest in the piece of land
encroached upon or in the adjoining land of the encroaching owner, or claiming
to be a party to or to be entitled to any benefit under any mortgage, lease, contract,
or easement affecting or relating to any such land, shall be entitled to apply for an
order under this section, or to be heard in relation to any application for or proposal
to make any order under this section. For the purposes of this subsection the Court
may, if in its opinion notice of the application or proposal should be given to any
such person as aforesaid, direct that such notice as it thinks fit shall be given to
that person by the encroaching owner or any other person.
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129A Relief in cases of mistake as to boundaries or identity of land
(1) Where any person who has or had an estate or interest in any piece of
land (in this section referred to as the original piece of land) has, while he had that
estate or interest, erected a building on any other piece of land (that other piece
together with any land reasonably required as curtilage and for access to the
building being in this section referred to as the piece of land wrongly built upon),
if the building has been so erected because of a mistake as to any boundary or as
to the identity of the original piece of land, that person, or any other person for
the time being in possession of the building or having an estate or interest in
either the original piece of land or the piece of land wrongly built upon, or any
other person mentioned in subsection (6) may apply to the Court, whether in any
action or proceeding then pending or in progress and relating to the piece of land
wrongly built upon or by an originating application, to make an order under this
section.
(2) If in the opinion of the Court it is just and equitable in the circumstances
that relief should be granted to the applicant or any other person, the Court may
make an order –
(a) Vesting that piece of land wrongly built upon in the person or
persons specified in the order;
(b) Allowing any person or persons specified in the order to remove
the building and any chattels and fixtures or any of them from the
piece of land wrongly built upon;
(c) Where it allows possession of the building to any person or persons
having an estate or interest in the piece of land wrongly built upon,
requiring all or any of the persons having an estate or interest in
that piece of land to pay compensation in respect of the building
and other improvements to the piece of land wrongly built upon to
such person or persons as the Court may specify;
(d) Giving the person who erected the building or any person or persons
claiming through him the right to possession of the piece of land
wrongly built upon for such period and on such terms and
conditions as the Court may specify.
(3) Where appropriate, the Court may make any such order without
ordering the applicant or any other person to give up possession of the piece of
land wrongly built upon, or to pay damages and without granting an injunction.
(4) Where the Court makes any order under this section, the Court may, in
the order, declare any estate or interest in the piece of land wrongly built upon to
be free from any mortgage, lease, easement, or other encumbrance affecting that
piece of land, or vary, to such extent as it considers necessary in the circumstances,
any mortgage, lease, easement, contract, or other instrument affecting or relating
to that piece of land.
(5) Any order under this section, or any provision of any such order, may
be made upon and subject to such terms and conditions as the Court thinks fit,
whether as to the payment by any person of any sum or sums of money, or the
execution by any person of any mortgage, lease, easement, contract, or other
instrument or otherwise.
(6) [Repealed by 2004/270]
(7) [Repealed by 2004/270]
(8) [Repealed 101/51/1971 (NZ)]
(9) Nothing in this section shall restrict the operation of section 129.
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1479
PART 10
ASSIGNMENTS OF THINGS IN ACTION
130 Assignment of debts and things in action
(1) Any absolute assignment by writing under the hand of the assignor
(not purporting to be by way of charge only) of any debt or other legal or equitable
thing in action, of which express notice in writing has been given to the debtor,
trustee, or other person from whom the assignor would have been entitled to
receive or claim that debt or thing in action, shall be and be deemed to have been
effectual in law (subject to all equities that would have been entitled to priority
over the right of the assignee if this Act had not been passed) to pass and transfer
the legal or equitable right to that debt or thing in action from the date of the
notice, and all legal or equitable and other remedies for the same, and the power
to give a good discharge for the same, without the concurrence of the assignor.
(2) Where the debtor, trustee, or other person liable in respect of any such
debt or thing in action has had notice that the assignment is disputed by the
assignor or any one claiming under him, or that there are other opposing or
conflicting claims to that debt or thing in action, he shall be entitled, if he thinks
fit, to call upon the several persons making claim to it to interplead concerning
the same; or he may, if he thinks fit, pay the same into the Court, under and in
conformity with the provisions of the Acts for the relief of trustees.
PART 11
MARRIAGE SETTLEMENTS
131-132 [Repealed by 2004/270]
133 Sanction of Court to be obtained
(1) Every minor in contemplation of his marriage may, with the sanction
of the Court, given on the application of the minor or his guardian, make a valid
and binding settlement or contract for a settlement of all or any part of his property,
or property over which he has a power of appointment whether in possession,
reversion, remainder or expectancy.
(2) Every conveyance, appointment and assignment of any such property,
and every contract to make a conveyance of it, appointment, or assignment of it
executed by the minor with the sanction of the Court for the purpose of giving
relief to the settlement shall be as valid and effectual as if the minor were of full
age.
(3) Where there is no guardian the Court may require a guardian to be appointed, and may also require that any persons interested or appearing to be interested in the property be served with notice of the application to the Court for its sanction.
(4) Where any appointment under a power of appointment or any
disentailing assurance, has been executed under this section by any minor as tenant
in tail, and afterwards that minor dies under age, the appointment or disentailing
assurance shall thereupon become absolutely void.
(5) [Repealed]
(6) The authority conferred by this section shall not extend to powers of
which it is expressly declared that they shall not be exercised by a minor.
1480 Niue Laws 2006 Vol 3
PART 12
POWERS OF ATTORNEY
134 Execution by attorney in his own name
(1) The donee of a power of attorney may execute or do any assurance
instrument, or thing in and with his own name and signature and his own seal
(where sealing is required) by the authority of the donor of the power; and every
assurance, instrument, and thing so executed and done shall be as effectual in law
to all intents as if it had been executed or done by the donee of the power in the
name and with the signature and seal of the donor of it.
(2) This section applies to powers of attorney created by instruments
executed either before or after the commencement of this Act.
135 Continuance until notice of death or revocation received
(1) Subject to any stipulation to the contrary contained in the instrument
creating a power of attorney, the power shall, so far as concerns any act or thing
done or suffered thereunder in good faith, operate and continue in force until
notice of the death of the donor of the power or until notice of other revocation of
it has been received by the donee of the power.
(2) Every act or thing within the scope of the power done or suffered in
good faith by the donee of the power after such death or other revocation as
aforesaid, and before notice of it has been received by him, shall be as effectual in
all respects as if that death or other revocation had not happened or been made.
(3) A statutory declaration by any such attorney to the effect that he has
not received any notice or information of the revocation of the power of attorney
by death or otherwise shall, if made immediately before or if made after any such
act as aforesaid, be taken to be conclusive proof of the no-revocation at the time
when the act was done or suffered in favour of all persons dealing with the donee
of the power in good faith and for valuable consideration without notice of the
said death or other revocation.
(4) Where the donee of the power is a corporation aggregate the statutory
declaration shall be sufficient if made by any director, manager, or secretary of the
corporation or by any officer of it discharging the functions usually appertaining
to any of those offices or by any officer of the corporation appointed for that purpose
either generally or in the particular instance by the board of directors, council, or
other governing body by resolution or otherwise, and if it is to the effect that to
the best of the declarant’s knowledge and belief neither the attorney nor any servant
or agent of the attorney has received any such notice or information as is mentioned
in subsection (3); and where the declaration contains a statement that the declarant
is a director, manager, or secretary of the corporation or is an officer of the
corporation discharging the functions usually appertaining to any of those offices
or is an officer of the corporation appointed for the purpose of making the
declaration, the statement shall be conclusive evidence in favour of the persons
mentioned in that subsection.
(5) This section applies to powers of attorney executed in or out of Niue.
136 Irrevocable power of attorney for value
Where a power of attorney given for valuable consideration (whether
executed in or out of Niue) is in the instrument creating the power expressed to be
irrevocable, then, in favour of a purchaser –
(a) The power shall not be revoked at any time, either by anything
done by the donor of the power without the concurrence of the
donee, or by the death, mental deficiency, or bankruptcy of the
donor; and
Property Law Act 1952
1481
(b) Any act done at any time by the donee of the power in pursuance of the power shall be as valid as if anything done by the donor without the concurrence of the donee, or the death, mental deficiency, or bankruptcy of the donor, had not been done or had not happened; and
(c) Neither the donee of the power nor the purchaser shall at any time
be prejudicially affected by notice of anything done by the donor
without the concurrence of the donee, or of the death, mental
deficiency, or bankruptcy of the donor.
137 Power of attorney made irrevocable for fixed time
Where a power of attorney (whether executed in or out of Niue, and whether
given for valuable consideration or not) is in the instrument creating the power
expressed to be irrevocable for a fixed time in it specified, not exceeding 1 year
from the date of the instrument, then, in favour of a purchaser —
(a) The power shall not be revoked for and during that fixed time, either
by anything done by the donor of the power without the
concurrence of the donee, or by the death, mental deficiency, or
bankruptcy of the donor; and
(b) Any act done within that fixed time by the donee of the power in
pursuance of the power shall be as valid as if anything done by the
donor without the concurrence of the donee, or the death, mental
deficiency, or bankruptcy of the donor had not been done or had
not happened; and
(c) Neither the donee of the power nor the purchaser shall at any time
be prejudicially affected by notice, either during or after that fixed
time, of anything done by the donor during that fixed time without
the concurrence of the donee, or of the death, mental deficiency, or
bankruptcy of the donor within that fixed time.
138 Conveyance under power of attorney from person not in Niue
No person shall be entitled to object to the execution or proposed execution
of conveyance solely on the ground that the execution is under a power of attorney
from a person not in Niue.
139 Application to corporations
The provisions of this Part apply with the necessary modifications with
respect to any power of attorney executed by any corporation to the same extent
as if the corporation were a person and the dissolution of the corporation (however
occurring) were the death of a person within the meaning of this Part.
PART 13
PARTITION OF LAND AND DIVISION OF CHATTELS
140 In action for partition Court may direct land to be sold
(1) Where in an action for partition the party or parties interested,
individually or collectively, to the extent of one moiety or upwards in the land to
which the action relates request the Court to direct a sale of the land and a
distribution of the proceeds, instead of a division of the land between or among
the parties interested, the Court shall, unless it sees good reason to the contrary,
direct a sale accordingly.
(2) The Court may on the request of any party interested, and
notwithstanding the dissent or disability of any other party, direct a sale in any
1482 Niue Laws 2006 Vol 3
case where it appears to the Court that, by reason of the nature of the land, or of the number of the parties interested or presumptively interested therein, or of the absence or disability of any of those parties, or of any other circumstance, a sale of the land would be for the benefit of the parties interested.
(3) The Court may also if it thinks fit, on the request of any party interested, direct that the land be sold, unless the other parties interested, or some of them, undertake to purchase the share of the party requesting a sale; and, on such an undertaking being given, may direct a valuation of the share of the party requesting a sale.
(4) On directing any such sale or valuation to be made, the Court may give also all necessary or proper consequential directions.
(5) (a) Any person may maintain such action as aforesaid against any one
or more of the parties interested without serving the other or others,
and it shall not be competent to any defendant in the action to object
for want of parties; and at the hearing of the cause the Court may
direct such inquiries as to the nature of the land and the persons
interested therein, and other matters, as it thinks necessary or proper,
with a view to an order for partition or sale being made on further
consideration.
(b) All persons who, if this Act had not been passed, would have been
necessary parties to the action shall be served with notice of the
decree or order on the hearing, and, after the notice, shall be bound
by the proceedings as if they had originally been parties to the action,
and shall be deemed parties to the action; and all such persons may
have liberty to attend the proceedings, and any such person may,
within a time limited by rules of Court, apply to the Court to add to
the decree or order.
(6) On any sale under this section the Court may allow any of the parties
interested in the land to bid at the sale, on such terms as the Court deems reasonable
as to non-payment of deposit, or as to setting off or accounting for the purchase
money or any part of it instead of paying the same, or as to any other matters.
141 Proceeds of sale, how applied
(1) All money received under any such sale may if the Court thinks fit be
paid to trustees appointed by the Court, and applied, as the Court directs –
(a) In the discharge of any encumbrance affecting the land directed to
be sold; and, subject to it
(b) In the payment of the residue to the parties interested.
(2) Where the Court so directs, the trustees (if any) may in their discretion
apply the money in manner aforesaid; and where no such direction is given any
party interested may apply to the Court for an order that the money be so applied.
(3) Until the money can be applied as aforesaid, it shall be invested in
such securities as the Court may approve, and the interest and dividends of it
shall be paid to the parties interested.
142 Costs in partition suits
In any action for partition the Court may make such order as it thinks just
respecting costs up to the time of the hearing.
143 Division of chattels
Where any chattels belong to persons jointly or in undivided shares, the
persons interested to the extent of a moiety or upwards may apply to the Court
for an order for division of the chattels or of any of them, according to a valuation
or otherwise, and the Court may make such order and give such consequential
directions as the Court thinks fit.
144 Interpretation
In this Part –
Property Law Act 1952
PART 14
APPORTIONMENT
1483
“annuities” includes salaries and pensions;
“dividends” includes (besides dividends strictly so called) all payments
made by the name of dividend bonus, or otherwise out of the revenue
of trading or other companies or corporations, divisible between all or
any of the members of it, whether those payments are usually made or
declared at any fixed time or otherwise; and all such divisible revenue
shall for the purposes of this section be deemed to have accrued by
equal daily increments during and within the period for or in respect
of which the payment of the same revenue is declared or expressed to
be made but “dividends” does not include payments in the nature of a
return or reimbursement of capital;
“rent” includes rents and all periodical payments or renderings in lieu of
or in the nature of rent.
145 Income apportionable in respect of time
All rents, annuities, dividends and other periodical payments in the nature
of income (whether reserved or made payable under an instrument in writing or
otherwise) shall, like interest on money lent, be considered as accruing from day
to day, and shall be apportionable in respect of time accordingly.
146 Time when apportioned part payable
The apportioned part of any such rent, annuity, dividend, or other payment
shall be payable or recoverable in the case of a continuing rent, annuity, or other
payment as soon as the entire portion of which the apportioned part forms part
becomes due and payable, and not before; and where the payment is determined
by re-entry, death, or otherwise, as soon as the next entire portion of the same
would have become payable if the same had not so determined, and not before.
147 Recovery of apportioned parts
(1) All persons and their respective executors, administrators, and assigns
and also the executors, administrators, and assigns respectively of persons whose
interests determined with their own death, shall have such or the same remedies,
legal and equitable, for recovering such apportioned parts as aforesaid when
payable (allowing for a proportionate part of all just allowance) as they respectively
would have had for recovering such entire portions as aforesaid if entitled to it
respectively.
(2) Where any person is liable to pay rent reserved out of or charged on
lands or other hereditaments of any tenure, that person and the said lands or
other hereditaments shall not be resorted to for any such apportioned part forming
part of an entire or continuing rent as aforesaid; but the entire or continuing rent,
including the apportioned part, shall be recovered and received by the person
who, if the rent had not been apportionable under this Part or otherwise, would
have been entitled to the entire or continuing rent; and the apportioned part shall
be recoverable from the last-mentioned person by the executors, administrators
or other parties entitled under this Part.
1484 Niue Laws 2006 Vol 3
148 Exceptions and application
(1) Nothing in this Part shall render apportionable any annual sums
payable under policies of assurance of any description.
(2) This Part does not extend to any case in which it is expressly stipulated
that apportionment shall not take place.
149 [Repealed by 2004/270]
PART 15
PART 16
RENTCHARGES AND OTHER ANNUAL SUMS
150 Recovery of annual sums charged on land
(1) Where a person is entitled to receive out of any land, or out of the income
of any land, any annual sum, payable half-yearly or otherwise, whether charged
on the land or on the income of the land, and whether by way of rentcharge or
otherwise, not being rent incident to a reversion, then, subject and without prejudice
to all estates, interests, and rights having priority to that annual sum, the person
entitled to receive the same shall have such remedies for recovering and compelling
payment of the same as are described in this section, so far as those remedies
might have been conferred by the instrument under which the annual sum is
payable, but not further.
(2) If at any time the annual sum, or any part of it, is unpaid for 21 days
next after the time appointed for any payment in respect of it, the person entitled
to receive the annual sum may enter into and distrain on the land charged or any
part of it, and dispose of it according to law of any distress found, to the intent
that thereby or otherwise the annual sum and all arrears of it, and all costs and
expenses occasioned by non-payment of it may be fully paid.
(3) If at any time the annual sum or any part of it is unpaid for 40 days
next after the time appointed for any payment in respect of it, then, although no
legal demand for that payment has been made, the person entitled to receive the
annual sum may enter into possession of and hold the land charged, or any part
of it and take the income of it until thereby or otherwise the annual sum, and all
arrears of it due at the time of his entry, or afterwards becoming due during his
continuance in possession, and all costs and expenses occasioned by non-payment
of the annual sum, are fully paid; and the possession when taken shall be without
impeachment of waste.
(4) In the like case the person entitled to the annual charge, whether taking
possession or not, may also by deed convey the land charged, or any part of it to
a trustee for a term of years, with or without impeachment of waste, on trust, by
mortgage, or sale, or demise for all or any part of the term, of the land charged, or
of any part of it, or by receipt of the income of it, or by all or any of those means,
or by any other reasonable means, to raise and pay the annual sum and all arrears
of it due or to become due, and all costs and expenses occasioned by non-payment
of the annual sum, or incurred in compelling or obtaining payment of it, or
otherwise relating to it, including the costs of the preparation and execution of the
deed of demise, and the cost of the execution of the trusts of that deed; and the
surplus, if any, of the money raised or of the income received under the trusts of
that deed shall be paid to the person for the time being entitled to the land therein
comprised in reversion immediately expectant on the term thereby created.
(5) This section applies only where the instrument under which the annual
sum is payable comes into operation on or after 1 January 1906, and then only in
so far as a contrary intention is not expressed in the instrument and shall have
effect, subject to the terms and provisions of it.
Property Law Act 1952
1485
(6) The rule of law relating to perpetuities shall not apply to any powers or remedies conferred by this section, nor to the same, or like powers or remedies conferred by any instrument for recovering or compelling the payment of any annual sum within the meaning of this section.
151 [Repealed by 2004/270]
152 Service of notices
PART 17
SERVICE OF NOTICES
(1) (a) Any notice required or authorised by this Act to be served on any person shall be delivered to that person, and may be delivered to him either personally or by posting it by registered letter addressed to that person at his last known place of abode or business in Niue.
(b) A notice so posted shall be deemed to have been served at the time
when the registered letter would in the ordinary course of post be
delivered.
(2) If the person is absent from Niue, the notice may be delivered as
aforesaid to his agent in Niue. If he is deceased, the notice may be delivered as
aforesaid to his personal representative.
(3) If the person is now known, or is absent from Niue and has no known
agent in Niue, or is deceased and has no personal representative, the notice shall
be delivered in such manner as may be directed by an order of the Court.
(4) Notwithstanding anything in subsections (1) to (3) the Court may in
any case make an order directing the manner in which any notice is to be delivered,
or dispensing with the delivery of it.
(5) This section does not apply to notices served in proceedings of the Court.
153 [Repealed by 2004/270]
PART 18
MISCELLANEOUS
154 Protection of solicitors and trustees
(1) It is hereby declared that the powers given by this Act to any person,
and the covenants, provisions, stipulations and words which under this Act are to
be deemed included or implied in any instrument, or are by this Act made
applicable to any contract for sale or other transaction, are and shall be deemed in
law proper powers, covenants, provisions, stipulations and words to be given by
or to be contained in any such instrument, or to be adopted in connection with or
applied to any such contract or transaction; and a solicitor shall not be deemed
guilty of neglect or breach of duty, or become in any way liable, by reason of his
omitting in good faith in any such instrument, or in connection with any such
contract or transaction, to negative the giving, inclusion, implication, or application
of any of those powers, covenants, provisions, stipulations, or words or to insert
or apply any others in place of it, in any case where the provisions of this Act
would allow of his doing so.
(2) But nothing in this Act shall be taken to imply that the insertion in any
such instrument, or the adoption in connection with, or the application to, any
contract or transaction of any further or other powers, covenants, provisions,
stipulations, or words is improper.
1486 Niue Laws 2006 Vol 3
(3) Where the solicitor is acting for trustees, executors, or other persons in a fiduciary capacity, those persons shall also be protected in like manner.
(4) Where such persons as aforesaid are acting without a solicitor they shall also be protected in like manner.
155 [Spent]
1487
PUBLIC EMERGENCY ACT 1979
1979/51 – 31 January 1980
|
1 |
Short title |
5 |
Protection of persons acting under |
|
2 |
Issue of Proclamations of Emergency |
authority of this Act | |
|
3 |
Emergency regulations | ||
|
4 |
Special provisions applicable pending issue | ||
|
of Proclamation of Emergency |
To make provision for the protection of the community in cases of emergency
1 Short title
This is the Public Emergency Act 1979.
2 Issue of Proclamation of Emergency
(1) Cabinet may by Proclamation of Emergency declare that a state of
emergency exists throughout Niue or, throughout any area or areas that may be
specified in the Proclamation if any time it appears to Cabinet that –
(a) Certain action has been taken or is immediately threatened by any
person or body of persons of such a nature and on so extensive a
scale as to be calculated, by interfering with the supply and
distribution of food, water, fuel, or light or with the means of
locomotion, to deprive the community of the essentials of life; or
(b) Circumstances exist or are likely to come into existence, whereby
the public safety or public order is or is likely to be imperilled.
(2) No such Proclamation shall be in force for more than one month, without
prejudice to the issue of another Proclamation at or before the end of that period.
(3) Where a Proclamation of Emergency has been made, it shall be
communicated to the Assembly at its next meeting.
3 Emergency regulations
(1) Where a Proclamation of Emergency is in force, and so long as the
Proclamation is in force, Cabinet may make such regulations as it thinks necessary
for the following purposes –
(a) The prohibition of any acts which in its opinion would be injurious
to the public safety; and
(b) The conservation of public safety and order, and
(c) Securing the essentials of life to the community.
(2) Without limiting the generality of the authority conferred by subsection
(1), any regulations as aforesaid may confer or impose on a responsible Minister
or any Department of State, or on any persons in the service of the Crown or
acting on behalf of the Crown, such powers and duties as Cabinet deems necessary
for –
(a) The preservation of peace and order;
(b) Securing and regulating the supply and distribution of food, water,
fuel, light and other necessities;
1488 Niue Laws 2006 Vol 3
(c) Maintaining the means of transit, transport or locomotion; and
(d) Any other purposes essential to the maintenance of public safety,
order and the life of the community.
(3) Cabinet may make such provisions incidental to the powers aforesaid
as may be required for making the exercise of those powers effective.
(4) Any regulations made under the authority of this section may apply
throughout Niue, notwithstanding that a Proclamation of Emergency may have
been issued only in respect of a limited area or of limited areas, or may, according
to the tenor of such regulations, apply only within the area or areas specified or
defined in the Proclamation of Emergency.
(5) Any regulations so made shall be laid before the Assembly as soon as
they are made, and shall not continue in force after the expiration of 14 days from
the time they are laid before the Assembly unless a resolution is passed by the
Assembly providing for their continuance.
(6) (a) Every person who commits, or attempts to commit any act with
intent to commit, or counsels, procures, aids, abets, or incites any
other person to commit, or conspires with any other person (whether
in Niue or elsewhere) to commit, any offence against any such
regulation shall be liable on conviction before the Court to
imprisonment for a term of 3 months or a fine of 2 penalty units or
both such imprisonment and fine, together with the forfeiture of
any goods or money in respect of which the offence has been
committed.
(b) In any prosecution for any such offence the Court may admit such
evidence as it thinks fit, whether such evidence would be admissible
in other proceedings or not.
(7) (a) The regulations so made shall have effect as if enacted, in this Act,
but may be added to, altered, or revoked by resolution of the
Assembly or by regulations made in the like manner and subject to
the like provisions as the originals.
(b) All regulations made under this section and not earlier revoked
shall expire on the expiration of the Proclamation of Emergency by
virtue of which they were made, but may be revived either in whole
or in part by any subsequent Proclamation of Emergency.
(8) The expiry or revocation of any regulations so made shall not be deemed
to have affected their previous operation or the validity of any action taken under
them or any penalty or punishment incurred in respect of any contravention or
failure to comply with them or any proceeding or remedy in respect of any such
punishment or penalty.
(9) No regulations under this Act shall be deemed invalid because they
deal with any matter already provided for by any Act or because of any repugnancy
to any such Act.
(10) Nothing in this Act or in any regulation under this Act shall be so
construed or shall so operate as to take away or restrict the liability of any person
for any offence punishable independently of this Act.
4 Special provisions applicable pending issue of Proclamation
(1) (a) In any case of public emergency, whether arising from earthquake,
fire, flood, public disorder, or otherwise howsoever, in which, owing
to the suddenness of the occurrence, the interruption of
communications, or any other cause, sections 1 to 3 cannot be put
into operation immediately, the senior officer of the Police present
Public Emergency Act 1979
1489
in the locality shall assume responsibility for the issuing of all orders and instructions necessary in his opinion for the preservation of life, the protection of property, and the maintenance of order.
(b) The authority conferred by this section shall cease on the issue of a
Proclamation of Emergency under section 2.
(2) Every person who obstructs or interferes with any constable or other
person in the execution of any orders or instructions given by or with the authority
of the senior officer of the Police as aforesaid commits an offence and shall be
liable to the same penalty as if he had committed an offence against regulations
made under the authority of section 3.
5 Protection of person acting under authority of this Act
No action, claim, or demand whatsoever shall be made or allowed by or in
favour of any officer or person acting in the execution or intended execution of this Act or of any regulations under it, for or in respect of any damage, loss or injury sustained or alleged to have been sustained by reason of anything done or purporting to be done under the authority of this Act or of regulations as aforesaid, save only in respect of reasonable compensation for any property used or taken for or on behalf of the Crown under any powers conferred by this Act or by regulations under this Act.
1490 Niue Laws 2006 Vol 3
1491
PUBLIC HEALTH ACT 1965
1965/24 – 29 January 1965
24 Register
Registration
25 Procedure and certificate of registration
26 Fees
27 Cancellation of registration
28 Offences
Provisions Covering all Classes of Food Premises
29 Requirements of food premises
30 Medical examination
31 Cleanliness of persons handling food
Special Classes of Food Premises
32 Additional requirements
33 Bakehouses
34 Meat and fish
35 Ice cream, milk ices and milk
Miscellaneous Provisions
36 Special powers of Director
37 Unlawful handling of food
38 Sale of unwholesome provisions
39 Unlawful interference with food and food
premises
CARE OF SICK PERSONS OTHER THAN IN HOSPITAL
17 Duty to notify Director of persons in need
of care
18 Treatment by laymen restricted
19 Change of abode restricted
20 Number of persons in sick room restricted
21 Lighting of fire in sick room restricted
22 Offences
PART 7
SANITATION (BUILDINGS AND DWELLINGS)
40 Interpretation
41 Requirements of buildings
42 Offences (buildings)
43 Requirements of dwellings
44 Overcrowding of dwellings prohibited
45 Offences (dwellings)
46 Enforcement order (buildings and
dwellings)
47 Closing order (buildings and dwellings)
48 Demolition order (buildings and dwellings)
49 Closing orders and demolition orders to
apply to food premises
PART 6
MANUFACTURE AND SALE OF FOOD 50-53 [Repealed]
Preliminary
23 Interpretation
PART 8
1492 Niue Laws 2006 Vol 3
|
PART 9 |
64 |
Language of public notice and notices | ||
|
54-59 |
[Repealed] |
65 |
Serving of notices and orders | |
|
66 |
Protection of persons acting |
under | ||
|
PART 10 |
authority of Act | |||
|
METHYLATED SPIRIT |
67 |
Compensation | ||
|
60 |
Interpretation |
68 |
Other Acts not affected | |
|
61 |
Offences |
69 |
Offences (generan( �/p> | |
|
70 |
Penalties (generan( �/p> | |||
|
PART 12 |
71 |
Laying poison | ||
|
MISCELLANEOUS PROVISIONS |
72 |
Storage of drugs | ||
|
62 |
[Repealed] |
73 |
[Spent] | |
|
63 |
Powers of High Court in respect of certain |
74 |
Application of fees and fines | |
|
orders under this Act |
1 Short title
PART 1
PRELIMINARY
This is the Public Health Act 1965.
2 [Repealed]
3 Interpretation
(1) In this Act –
“approved” means approved by the Chief Medical Officer;
“Director” means the Director of Health and includes any Medical Officer
and other officer of the Department of Health performing duties under
this Act on behalf and under the authority of the Director of Health and
includes also any Inspector of Health appointed under section 7;
Provided that, when an Inspector of Health has been appointed for the
specific purposes of one Part, reference to the Director of Health in that
Part shall be taken as including reference to an Inspector so appointed
only;
“isolation station” means an isolation station appointed under section 9;
“notice” means a notice in writing signed by the person authorised to give
such notice and to be served as provided in section 65;
“Director of Works” means the officer for the time being in charge of the
Public Works Department.
(2) Terms defined in any Part of this Act have the meaning so defined for
the purposes of any other Part.
PART 2
ADMINISTRATION OF PUBLIC HEALTH
4 [Repealed by 2004/270]
5 Principal functions of Director
The principal functions of the Director under this Act shall be –
(a) To prevent, limit, and suppress infectious and other diseases;
(b) To institute and carry out investigations in respect of public health;
(c) Generally to take all such steps or, as the case may be, to advise the
Cabinet on taking such steps, as may be necessary to secure the
promotion and conservation of human health.
Public Health Act 1965
1493
6 Powers of Director and duty of Police to assist –
(1) The Director shall have –
(a) Power to enter at all reasonable times any dwelling, building, land
or any other premises or place and inspect the same and to execute
on it any works authorised under or on this Act;
(b) All powers conferred on him for the purposes of any Part as
specified in any such Part;
(c) All other powers necessary to carry out his duties and functions
under this Act.
(2) It shall be the duty of every constable to give the Director any assistance
which he may require in the exercise of his duties and functions under this Act
and, when requested by the Director so to do, to accompany him and to enter
with him any premises or place.
7 Appointment of Inspectors
There may be appointed such number of Inspectors of Health as may be
necessary for the administration and operation of this Act and any Inspector so
appointed may be known as “Inspector of Health” or as “Mosquito Control Officer”
or “Food Inspector”, as the case may be, or by any other name indicating the
specific purposes (if any) for which he was so appointed.
PART 3
QUARANTINE
8 Special functions of Director
The Director shall confer with and advise the Cabinet in the administration
and application of the sanitary measures permitted or prescribed, as the case may
be, by the International Sanitary Regulations.
9 Appointment of isolation stations
(1) Cabinet may by public notice appoint any institution, building, premises
or place to be an isolation station for the purposes of this Act, and any such
appointment may be permanent or for any period or extended period as
circumstances require.
(2) The boundaries of any isolation station so appointed shall be exactly
defined in the public notice and the site of the station shall be marked off
accordingly and clearly indicated by fences, hoardings, posters or in such other
ways as the Cabinet may direct.
10 Offences
Every person who trespasses on any isolation station may, in addition to
any penalty inflicted under this Act or the Niue Act 1966 be detained within the
isolation station under an order issued by the Director under section 14(1)(d).
11 Interpretation
In this Part –
PART 4
NOTIFIABLE INFECTIOUS DISEASES
“carrier” means any person having in his blood, or in his nose or throat, or in his excretions, or in his discharges, or in his secretions, the specific infectious agent of any notifiable disease though he may exhibit no other sign or symptom of that disease;
1494 Niue Laws 2006 Vol 3
“contact” means any person who has been exposed to risk of infection by a notifiable disease, when the length of time since such exposure does not exceed, in the opinion of the Director, the period or incubation of that disease;
“drug” means and includes any drug or medicine used in the treatment, prevention, investigation, or alleviation of any disease, illness, or injury affecting human beings;
“notifiable disease” means –
(a) Tuberculosis, whether pulmonary, glandular or osseous or in any
other form, and in any stage of development or course of medical
treatment which, in the opinion of the Director is infectious;
(b) Leprosy in all known forms of that disease;
(c) Venereal diseases including syphilis, gonorrhea and soft sore;
(d) Any other infectious disease which Cabinet may declare on
publication by public notice to be a notifiable disease;
“suspected person” means any person suspected to be suffering from a
notifiable disease or to be a carrier or contact.
12 Duty to notify the Director
(1) Every person who has reason to believe that he is a suspected person
or that any other person, whether under his care and responsibility or not, is a
suspected person, shall without delay notify the Director.
(2) Every person who knowingly fails to notify the Director as provided in
subsection (1) commits an offence and shall be liable on conviction to a fine not
exceeding 0.5 penalty units.
13 Procedure on notification
On being notified as aforesaid the Director shall forthwith issue instructions
for the medical examination of every suspected person and make arrangements
for the medical treatment of every person found to be suffering from any notifiable
disease or to be a carrier or contact and, where in his opinion necessary, for the
isolation of any such person or any suspected person, as hereinafter provided.
14 Special powers of Director and offences
(1) The Director shall have power –
(a) To order any person to undergo such medical examination as he
thinks fit and for that purpose to attend before him at such time
and place as he may appoint;
(b) To order any person to undergo such medical treatment in his home
or in the hospital as the Director may prescribe;
(c) To enter at all reasonable times any dwelling, building, land or any
other premises or place where he has reason to believe that a
suspected person may be and to conduct in it such investigation
and such medical examination or treatment as he deems necessary;
(d) To order any person to be admitted to and detained in such isolation
station as he may direct, for such period of time or such extended
period of time as he deems necessary.
(2) For the purposes of subsection (1), “person” means every person
suffering from a notifiable disease, every suspected person, and every person who,
in the opinion of the Director requires any observation, examination, or treatment
necessary for the control of notifiable diseases.
Public Health Act 1965
1495
(3) All orders issued by the Director under this section shall be in writing signed by him and any order of admission and detention issued under subsection (1)(d) shall, when delivered to the person named in it, be sufficient authority to that person and shall bind that person to receive and detain under the order, the person in respect of whom the order is made and not to discharge such person except on receipt of an order in writing to that effect signed by the Director.
(4) Any Medical Officer, Inspector, or constable may without any authority other than this section apprehend any person who attempts to evade detention or who leaves an isolation station without being discharged as provided in this section, and shall deliver or return, as the case may be, the person so apprehended to the officer in charge of the isolation station.
(5) Except to the extent to which any part of the isolation station may be
open to visits by the public, no person shall visit any person detained under this
section except with the written permission of the Director which may be given
either generally or for any particular case and subject to any condition which the
Director may think fit to impose, and every person found without such permission
or in contravention of any condition attached to such permission on the site of
any isolation station or visiting any person detained in it commits an offence and,
in addition to any penalty inflicted under section 70, may be detained within the
isolation station under an order under subsection (1)(d).
(6) Every person who fails to comply with any order made by the Director
under subsection (1) or who escapes or attempts to escape from any isolation
station, commits an offence and shall be liable on conviction to a fine not exceeding
0.5 penalty units.
15 Infecting any person with venereal disease
Every person who knowingly infects any other person with a venereal
disease or knowingly does or permits or suffers any act likely to lead to the infection
of any other person with any such disease, commits an offence and shall be liable
on conviction to imprisonment for a term not exceeding 3 months or to a fine not
exceeding 1 penalty unit.
16 Occupation of suspended or diseased person restricted
(1) Except with the written permission of the Director, no person who to
his own knowledge suffers from any notifiable disease or is a suspected person
shall engage, and no person shall knowingly employ any person so suffering or
being a suspected person in any of the following occupations, that is to say –
(a) The handling of food within the meanings of Part 6;
(b) Any trade, business, or occupation connected with the supply,
preparation or distribution of drugs or tobacco in any form;
(c) Laundry work;
(d) Tailoring;
(e) Domestic service;
(f) Nursing and midwifery;
(g) Hairdressing;
(h) Work in any store or shop;
(i) Driving any vehicle used for passenger services within the meaning
of Part 12 of the Transport Act 1965;
(j) Work on board any ship or vessel;
(k) Teaching or any other occupation involving close contact with
children.
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(2) Every person who fails to comply with this section commits an offence and shall be liable on conviction to a fine not exceeding 0.5 penalty units in the case of an individual, and 2 penalty units in the case of a company or other body corporate as employer.
PART 5
CARE OF SICK PERSONS OTHER THAN IN HOSPITAL
17 Duty to notify Director of persons in need of care
Every person who has reason to believe that any other person, whether
under his care and responsibility or not, is by reason of age, infirmity, or disease,
living in a destitute or insanitary condition or without proper care or attention,
shall without delay notify the Director.
18 Treatment by laymen restricted
No person other than a Medical Officer or a nurse shall apply mechanical
restraint to any person of unsound mind without the previous consent in writing
of the Director.
19 Change of abode restricted
No person who is seriously ill shall be removed from any dwelling to any
other place (other than the hospital or any isolation station) without the previous
consent in writing of the Director.
20 Number of persons in sick room restricted
(1) Not more than 3 persons shall congregate in a sick room.
(2) Only persons in immediate attendance on a sick person shall sleep in
such sick person’s room and not more than 2 persons being so in attendance shall
sleep in that room at one and the same time.
21 Lighting of fire in sick room restricted
No fire shall be lighted in a sick room except in a properly constructed
fireplace with a chimney attached.
22 Offences
Any person who fails to comply with this Part commits an offence.
23 Interpretation
PART 6
MANUFACTURE AND SALE OF FOOD
Preliminary
(1) In this Part, and subject to subsection (2) –
“bakehouse” means any place in which are prepared or baked for sale for
human consumption bread, doughnuts, biscuits, cakes or confectionery,
and includes any portion of any such premises used for the storage of
yeast or flour or the kneading or working of dough;
“Certificate of Registration” includes every renewal of such certificate;
“engaging in the handling of food” means the handling of food as employer
or employee or in any capacity whatsoever, whether permanently or
temporarily and, if as employee, whether for remuneration or not;
“food” means every article used for food or drink by man other than drugs
and water, and includes flavouring matters and condiments as well as
every article used in the composition or preparation of food;
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“food premises” means and includes – (a) any bakehouse or cake-kitchen; (b) any meat room;
(c) any place used for the sale of meat or fish;
(d) any place used for the storage of retail sale of milk;
(e) any place used for the manufacture, packing, or sale of ice cream or
milk ices;
(f) any place used for the manufacture or bottling of cordials, syrups,
aerated waters, or beverages;
(g) any other premises or buildings or any room or other part of them
or any place in or on which food is handled;
“handling of food” means taking part in the manufacture, preparation,
storage, packing, carriage or delivery of food for sale, or in the retail
sale of food;
“meat” means the edible parts of any mammal, fish, fowl, crustacean, or
mollusc ordinarily used for human consumption and includes any food
containing meat;
“sell” includes to barter and also includes to offer or attempt to sell or
receive for sale or have in possession for sale or send forward for sale
or deliver for sale or cause or suffer or allow to be sold, offered or
exposed for sale, but refers only to selling for consumption or use by
man, and to sell food includes to supply meals at any restaurant, hotel
or boardinghouse;
“vehicle” has the same meaning as in the Transport Act 1965.
(2) Nothing in this Part shall be so construed as to apply to the growing
and harvesting of any kind of fruit, vegetable or seed and the transporting of the
same as harvested to any place for storage, sale, manufacture, or processing.
24 Register
Registration
The Director shall compile and keep at his office a record of all registered food premises and of all certificates of registration issued with respect to such premises and also of the fees received.
25 Procedure and certificate of registration
(1) Application for the registration of any food premises shall be made to
the Director and shall contain such particulars as the Director may in any individual
case require.
(2) On receipt of an application for registration of any class of food premises
the Director, if satisfied that the food premises comply with all the requirements
of this Part pertaining to that class of food premises, shall register the food premises
and issue to the applicant a certificate of registration for such period of time not
exceeding one year, as the Director thinks fit.
(3) Any such certificate may be renewed in the same manner on application
made on or before the date of its expiration.
(4) Any certificate of registration shall be posted conspicuously in the food
premises to which it relates and a fresh certificate shall be issued on every renewal
of registration.
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26 Fees
(1) Cabinet may by public notice prescribe that fees shall be payable for
the registration of any specified class or classes of food premises and shall
determine the amount of any fee so prescribed.
(2) Every application for registration shall be accompanied by the amount
of the fee (if any) so prescribed and determined.
27 Cancellation of registration
(1) The Director may by notice cancel and endorse any certificate of
registration and direct the holder of the certificate to discontinue the handling of
food in the food premises on and from a date specified in the notice, if he considers –
(a) That the certificate had been obtained by a substantially false
statement in the application; or
(b) That the food premises do no longer comply with all the relevant
requirements of this Part; or
(c) That the food premises are not kept as required by this Part or that
work is carried out or food handled in the food premises or in
connection with the business conducted in the food premises
contrary to the provisions of this Part.
(2) If the Director in the exercise of the powers conferred on him by
subsection (1) directs the holder of the certificate to discontinue the handling of
food he may make his direction known to the public in any way he thinks fit.
(3) Within 5 days of the receipt of such notice the holder of the certificate
may file with the Registrar of the Court an application for relief from the
requirements of the notice setting forth the extent and grounds of the relief sought.
(4) In hearing and determining any application so filed a Judge shall have
and may exercise all the powers which he has in his ordinary jurisdiction and his
determination shall be final.
(5) Pending the expiration of the time within which the application for
relief may be lodged and the determination of the motion the notice shall be deemed
to be suspended.
(6) On hearing the case the Judge may cancel the notice or may confirm it
either absolutely or subject to such conditions and modifications as he thinks just.
(7) The power to cancel any certificate of registration under this section
may be exercised in addition to any penalty which the holder of the certificate
may have incurred under this Act or any other enactment for the time being in
force.
28 Offences
Every person who engages in the handling of food in any food premises –
(a) Without first having obtained a certificate of registration with
respect to those particular food premises; or
(b) After the date of expiry of such certificate; or
(c) In the event of cancellation –
(i) If no application for relief is filed, on the expiration of 5 days
after receipt of the notice or after the date specified in the notice
whichever is the later;
(ii) If application for relief is duly filed, after the date on or from
which the notice is confirmed by an order of the Court,
commits an offence and, unless he is guilty of contempt of the High Court within
the meaning of section 101 of the Niue Act 1966 shall be liable on conviction to a
fine not exceeding 0.5 penalty units in the case of an individual, and 2 penalty
Public Health Act 1965
1499
units in the case of a company or other body corporate and, if there is a continuing one, to a further fine not exceeding 0.5 penalty units for every day on which the offence has continued.
Provisions Covering all Classes of Food Premises
29 Requirements of food premises
(1) No food premises shall be opened in any building, premises, or other
places which are or have at any time been used for any purpose likely to affect injuriously the cleanliness of the food premises or the food handled in it.
(2) Buildings shall –
(a) Be well constructed, in good repair, weatherproof, and shall offer
no entrance or harbourage for rats, mice and other vermin;
(b) Have approved means of lighting and ventilation;
(c) Be provided with approved drainage:
Provided that no drain or pipe carrying off faecal matter or sewage
shall be approved if it has any opening within the food premises;
(d) When adjacent to any dwelling, be separated therefrom by an
approved solid wall.
(3) Floors shall be constructed of approved material suited to the process
of work carried out there, and properly graded and drained.
(4) The internal surfaces of all walls shall be finished with an approved
material having a smooth even surface capable of being readily cleaned and ceilings
shall be of approved design.
(5) All staircases or passages in any food premises or leading to them shall
be kept lime-washed or painted with not less than 2 coats of approved paint or
varnish.
(6) All food premises shall be provided with –
(a) Approved fly-proof cupboards or other receptacles for all the food
or other products of the food premises and with sufficient metal
receptacles for waste and refuse;
(b) Tables and benches suitable for handling food and having an
approved impervious surface free from cracks and capable of being
easily cleaned;
(c) An approved constant supply of clean water, basin, soap and hand
towels for the washing of hands of food handlers.
(7) No dust bin shall at any time be placed within any food premises, and
no food premises shall be in direct communication with any urinal, privy or water
closet, or situated less than fifty yards from any pigsty or from any domestic animal.
(8) No animal shall be kept or allowed to be in any food premises.
(9) (a) No room forming part of the food premises and being used for
their purposes shall serve during any period of the day or the night
as a sleeping-apartment or as a living-apartment.
(b) Any room forming part of the food premises without being used
for their purposes may serve as a sleeping-apartment or as a living-
apartment, but if it is situated on the same level with any room
used as food premises, only when effectually separated therefrom
by a partition extending from the floor to the ceiling and provided
with approved ventilation.
(10) All food premises shall be kept scrupulously clean and their grounds
kept tidy and free from any accumulation of rubbish or other matter likely to
harbour flies and other insects, rats, mice or other vermin.
1500 Niue Laws 2006 Vol 3
(11) Food and every implement, article, utensil, tool of trade, bench, fitting, machine or other appliance, and every vehicle used for or in connection with the carriage or delivery of food shall at all times be kept clean and free from dust and foul odours and be protected as far as practicable against the access of flies and other insects, or of rats, mice and other vermin.
(12) All receptacles shall be emptied and cleaned at such intervals as may
be necessary to prevent a nuisance arising from their contents and shall be kept
covered except when being filled or emptied.
30 Medical examination
(1) (a) Every person engaged or taking up engagement in the handling of
food shall, before taking up such engagement, and once every year
thereafter or at such shorter intervals as the Director may direct,
present himself to the Director for a medical examination.
(b) The Director may exempt any person from compliance with the
requirements of this section when the nature of his engagement in
the handling of food obviates the necessity for such compliance.
(2) Every person, not being so exempted, who fails to comply with this
section commits an offence and shall be liable on conviction to a fine not exceeding
0.5 penalty units.
31 Cleanliness of persons handling food
(1) Every person shall, while handling food maintain his clothing, his
hands, and his body clean and shall, before commencing work and every time
after visiting any privy and before resuming work, wash his hands thoroughly
with soap and clean water.
(2) No person who is, for the time being, suffering from any skin eruption
or who is wearing unclean or medicated bandages shall handle food.
(3) No person shall spit or smoke or chew tobacco while handling food.
Special Classes of Food Premises
32 Additional requirements
Without limiting in any way sections 29, 30 and 31 the following additional
provisions shall apply with respect to the specific classes of food premises described
hereinafter.
33 Bakehouses
(1) Every bakehouse shall comply in all respects with the requirements
hereinafter provided.
(2) The bakehouse shall be provided with a wooden or metal bench and
racks, troughs, bins and cupboards of approved design and material for the storage
of flour and all other articles of food or ingredients used in baking and all flour
and other food shall be placed on a table, bench, shelf, rack, or any other stand or
structure well above ground level.
(3) The bakehouse shall be used exclusively for the purpose of baking and
for the storage of flour and other articles of food or ingredients for baking and for
no other purpose.
(4) Every room or compartment in which flour is stored shall be free from
damp, and flour and other food shall as far as practicable be protected from dust,
vermin, and insects.
Public Health Act 1965
1501
34 Meat and fish
(1) All premises used for the preparation of meat or fish for sale and every
butcher ’s or fishmonger ’s shop for the retail sale of meat or fish and all work in
connection therewith shall comply in every respect with the requirements
hereinafter provided.
(2) The floor of any building so used shall be constructed of an approved
impervious material which shall be carried up the walls to a height of not less
than three inches in such a manner that angles between the floor and the walls are
concavely rounded off.
(3) All floors shall be thoroughly cleaned with hot water at least once every
working day and shall at all times be kept in a state of reasonable cleanliness.
(4) Tables, benches, shelves and all appliances with which meat or fish
may come into contact shall, as far as practicable, be impervious to water and
shall be kept clean.
(5) Every ventilation opening and every window shall be fitted with a
covering of wire gauze or other material suitable for excluding flies.
(6) If required by the Director, a self-closing door shall be fitted in every
doorway to such premises or shops so as to exclude flies.
(7) All meat and other articles of food except when being processed shall
be adequately protected by storage in a refrigerator or other approved
compartment or receptacle from contamination by dust, vermin, or insect.
(8) No bones or waste matter of any kind shall be kept longer than 12
hours in any such premises or shop.
(9) (a) No carcase or portion of a carcase shall, while being transported or
delivered to or from any such premises or shop, be deposited on
any roadway or wharf or on the deck of any vessel or on any similar
surface or place open to traffic, unless the carcase or portion of it,
as the case may be, is enclosed in a clean receptacle or cover;
(b) It shall not be necessary to cover any carcase or portion of a carcase
that is suspended during transit so that no part of it can rest on
such surface or place.
(10) No person shall transport any carcase or portion of a carcase in any
vehicle unless it is by any approved method protected from contamination caused
by coming into contact with any unclean portion of the vehicle.
(11) No person shall use for the carriage of meat any vehicle or receptacle
which is not so constructed as to be easily cleaned and capable of being kept so
closed or covered as to protect the meat being transported, from dust, flies and
other sources of contamination.
35 Ice cream, milk ices and milk
(1) All utensils used for the manufacture, packing, or sale of ice cream or
milk ices and all work in connection with it shall comply in every respect with the
requirements hereinafter provided.
(2) All appliances with which any ice cream or milk ice may come into
contact during its preparation, manufacture, or packing, shall be cleaned and
sterilised by steam, boiling water, or other approved method at least once each
working day.
(3) No person shall manufacture, store, or deposit any ice cream or milk
ice for sale, or store, or deposit the ingredients thereof or any milk in any vessel
which is not clean.
(4) No person shall use for transporting ice cream, milk ices, or milk any
vessel unless such vessel is so constructed as to permit of every part of its interior
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being seen and adequately cleaned, and unless it is provided with a lid or covering which protects the interior from dust, rain and contamination.
(5) Ice cream and milk ices for sale shall be kept in a separate compartment of a refrigerator or in a separate approved container within a refrigerator and any such compartment or container shall at all times be kept clean.
(6) No other kind of food or any other substance shall be placed or kept in
any compartment or container –
(a) Containing at the same time ice cream or milk ices, or
(b) Not containing any ice cream or milk ices for the time being, but to
be used again for containing the same.
(7) All dishes and servers used in the retail sale of ice cream and milk ices
shall be made of metal and shall have no moving parts and shall, when not in
actual use, be kept either in clear water or free from water in an approved covered
receptacle made of impervious material and capable of being easily cleaned and
sterilised.
(8) Ice cream, milk ices, and the cones or wafers or other containers in
which ice cream or milk ices are sold, shall at all times be protected from
contamination by dust and by flies and other insects.
(9) No person engaged in the manufacture, or packing, or in the sale of ice
cream or milk ices shall permit his hands or arms, or any part of his clothing, to
come into contact with any ice cream or milk ice.
(10) No person shall sell any ice cream or milk ice which, after having
been once frozen, has run down or melted and has again been frozen.
Miscellaneous Provisions
36 Special powers of Director
(1) The Director shall have power –
(a) To enter, inspect and examine at all reasonable times by day or night
any food premises or any vehicle used in connection with the
handling of food and to examine any food and any utensil used in
the handling of food;
(b) To make such examination or inquiry and to take such samples of
any food as he deems necessary for the control of compliance with
this Part;
(c) To seize any food that in his opinion is unfit for human consumption.
(2) On seizing any food the Director shall forthwith apply to the Court for
an order of forfeiture.
(3) (a) Without limiting section 69 and section 70 the Court on hearing the
application may make such order as it thinks just for the restoration
of any food seized or may order that the food shall be forfeited and
any such food shall be forfeited to the Crown accordingly and may
be disposed of in such manner as the Court directs.
(b) The Director may order any food seized to be destroyed prior to
the making of a Court order when the food is so decayed or putrified
that its restoration is not reasonably practicable.
37 Unlawful handling of food
Every person commits an offence who handles food in any food premises,
whether registered or not, which do not comply with all the relevant requirements
of this Part or who handles food in a manner contrary to the requirements of this
Part.
Public Health Act 1965
1503
38 Sale of unwholesome provisions
Every person commits an offence and is liable on conviction to
imprisonment for a term not exceeding one month or to a fine not exceeding 0.5
penalty units who sells, or exposes for sale, or has in his possession with intent to
sell, any food or drink which he knows or might by the exercise of reasonable care
have known to be unwholesome.
39 Unlawful interference with food and food premises
Every person not being a person engaged in the handling of food, who –
(a) Interferes without lawful excuse with any food or the handling of
it or with any thing or matter used in the handling of food so as to
prevent any provisions of this Part from being complied with;
(b) Who urinates, spits, smokes or chews tobacco in any food premises,
commits an offence.
40 Interpretation
In this Part –
PART 7
SANITATION (BUILDINGS AND DWELLINGS)
“building” means public buildings and business buildings; “business building” means and includes –
(a) Every shop, workshop, warehouse, store and other place in which goods are kept or exposed or offered for sale to dealers therein or to the public;
(b) Every office or place in which business of any description is transacted and to which the public have access for that purpose;
but, subject to section 49 does not include food premises within the
meaning of Part 6;
“dwelling” means any structure, whether permanent or temporary, used
for human habitation and includes any cookhouse belonging to the
dwelling;
“public building” means –
(a) Every building used as an assembly room or used for the purpose
of public worship or public meetings;
(b) Every building provided for the instruction, training, or use of the
pupils of any school.
41 Requirements of buildings
Every building shall comply to the satisfaction of the Director with the
following requirements –
(a) Every room in any building shall be provided with means of
ventilation so as to admit of a sufficient supply of fresh air and
carry off and render harmless, as far as practicable, all fumes, gases,
vapours, dust and other impurities arising from the use of the
building;
(b) Every room in any building shall be lighted to the extent that the
Director considers necessary for the purpose for which such room
is used;
(c) Every part of any building shall be day by day kept in a clean state
so as not to be injurious to health;
(d) Every building and land belonging to such building shall be kept
free from any leakage in any drain or sanitary convenience and
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from any other nuisance which is offensive or likely to be injurious to health;
(e) All land, sheds, and other outbuildings belonging to any building shall be kept in a state of reasonable cleanliness and refuse and rubbish shall be disposed of from time to time as circumstances require.
42 Offences (buildings)
(1) Every person who is responsible for compliance with section 41
(whether by law or by contract and whether by reason of his trade, occupation,
office or employment) and who makes default in such compliance commits an
offence and shall be liable on conviction to a fine not exceeding 0.5 penalty units
and, if the offence is a continuing one, to a further fine not exceeding 0.5 penalty
units for every day on which the offence has continued.
(2) Every person who does any act or thing likely to impair or lower the
state of sanitary condition in any building commits an offence.
43 Requirements of dwellings
Every dwelling shall comply to the satisfaction of the Director with the
following requirements –
(a) The dwelling shall be provided with sufficient ventilation and
approved natural lighting;
(b) The dwelling including its movable contents shall be kept
reasonably clean. All bedding and mats shall be regularly aired and
gravel or leaf floors shall be renewed as circumstances require;
(c) The dwelling shall be provided with a properly built and maintained
latrine. Pit latrines shall be placed not less than twenty feet from
any dwelling, building, or public place.
Water seal latrines and septic tanks shall be placed not less than 10
feet from any dwelling, building or public place. Every latrine shall
be kept thoroughly clean at all times;
(d) Any enclosure for animals or birds belonging to the dwelling shall
be placed not less than 66 feet from the dwelling and shall be
properly kept and maintained;
(e) Every dwelling and land belonging to such dwelling shall be kept
free from any leakage in any drain or sanitary convenience and
from any other nuisance which is offensive or likely to be injurious
to health;
(f) All land, sheds, and other outbuildings belonging to the dwelling
shall be kept in a state of reasonable cleanliness and refuse and
rubbish shall be disposed of as circumstances require.
44 Overcrowding of dwellings prohibited
The Director may by notice limit the number of persons who may sleep in
one and the same room of any particular dwelling and for the purposes of this
Part every dwelling shall be deemed to be overcrowded if the number of persons
sleeping at the same time in any room exceeds the maximum number specified in
the notice.
Public Health Act 1965
1505
45 Offences (dwellings)
(1) Every person who uses or permits to be used any dwelling shall be
responsible for compliance with this Part relating to dwellings and every person
who uses or permits to be used any dwelling which does not comply with the
requirements of section 43 or which is overcrowded commits an offence and, on
conviction as provided in this section, shall be liable to a fine not exceeding 0.5
penalty units.
(2) Except as provided in subsection (3) on the hearing of any information
laid against any such person under this section, a Judge after hearing the evidence
shall, if the evidence supports the information, make an order directing the offender
to comply with every provision in respect of which default has been made, within
a time specified in the order and shall adjourn the hearing until some day after
the time so specified and on such adjourned hearing shall not convict the offender
unless he has wilfully failed to comply with the order made on the first hearing.
(3) If at any hearing of the information it is made to appear to the
satisfaction of the Judge that the neglect or omission in respect of which the
information is laid, was due to the physical incapacity of the offender or that
compliance with any requirements of section 43 or section 44 is liable to involve
undue hardship to the offender, the Judge may grant to the offender such
exemption from the requirements of those sections or, as the case may be, such
extension of time for compliance with them as, having regard to all the
circumstances of the case, appears just and reasonable and any such exemption or
extension may be so granted subject to any condition which the Judge deems fit
to impose.
46 Enforcement order (buildings and dwellings)
In every case where –
(a) Default is made in complying with any requirements of section 41
or section 43; and
(b) The person responsible for so complying has departed from Niue
without appointing any attorney, agent, or trustee to act in his stead
in respect of his duties and liabilities under those sections,
the Judge, on application made by the Director, may make an order (an enforcement
order) directing the Director of Works to enter upon the land and the dwelling or
building, as the case may be, and, at the expense in all things of the responsible
person, to carry out such work required by those sections and specified in the
order as appears necessary in the interest of the community, and the amount of all
such expenses shall be recoverable from that person as a debt due to the Crown.
47 Closing order (buildings and dwellings)
(1) If any building or dwelling is, by reason of its state of disrepair or for
any other reason likely to be injurious to health, a Judge of the Court, on application
made by the Director may, after hearing such evidence as he deems fit, make an
order (a closing order) prohibiting the use or occupation of the dwelling or building
or any part of it as the case may be, until the repairs, alterations, or other works
specified in the closing order have been carried out by the person or persons named
in the order to the satisfaction of the Director.
(2) The Judge shall, in the closing order, state the date on or before which
the works specified in the order shall be carried out and shall adjourn the hearing
until some day as soon as practicable after the time so specified.
1506 Niue Laws 2006 Vol 3
(3) On such adjourned hearing –
(a) If a certificate issued by the Director is produced to the effect that
the works specified in the closing order have been carried out to
his satisfaction the Judge shall revoke the closing order;
(b) If no such certificate is produced the Judge may extend the time
specified in the closing order and adjourn the hearing accordingly
or make an order directing the Director of Works to enter upon the
land and the dwelling or building, as the case may be, and, at the
expense in all things of the person or persons named in the closing
order to carry out the works specified in the closing order and the
amount of all such expenses shall be recoverable from that person
or those persons as a debt due to the Crown.
(4) In any order made under subsection (3) (b) the Judge shall declare that
the closing order shall cease to have any force and effect on the issue of a certificate
signed by the Director of Works that he has carried out the works specified in the
closing order.
(5) The certificate so issued shall be handed over to the person or persons
named in the closing order and a copy shall be filed with the Registrar of the
Court.
48 Demolition order (buildings and dwellings)
(1) If any dwelling or part of it is permanently unfit for human habitation
or any building or part of it is permanently unfit for use or occupation, a Judge,
on application made by the Director, may, after hearing such evidence as he deems
fit, make an order (a demolition order) prohibiting the use or occupation of the
dwelling or building or any part of it, as the case may be, and requiring the person
or persons named in the order to take down and remove any structure specified
in the order to the satisfaction of the Director.
(2) The Judge shall, in the demolition order, state the date on or before
which the works specified in the order shall be carried out and shall adjourn the
hearing until some day after the time so specified.
(3) On such adjourned hearing –
(a) If a certificate issued by the Director is produced to the effect that
the works specified in the demolition order have been carried out
to his satisfaction, the Judge shall dismiss the case;
(b) If no such certificate is produced the provisions of section 47 (3) (b)
shall apply with all necessary modifications.
(4) On completing the works as directed the Director of Works shall file
with the Registrar of the Court a statement to the effect that the works have been
so completed.
(5) The provisions of this section shall, with all necessary modifications,
apply to the removal and destruction of any mat or other household article or of
any business utensil.
(6) If any building or dwelling described in subsection (1) is deserted or if
for any other reason no order under that subsection can be made, the Judge, on
application made by the Director may, after hearing such evidence as he deems
fit, make an order directing the Director of Works to enter and to demolish as
provided in subsection (4) (b) and such provisions of this section as are applicable
shall then apply with all necessary modifications.
49 Closing orders and demolition orders to apply to food premises
Notwithstanding section 40, section 47 and section 48 shall apply to all
classes of building including food premises within the meaning of Part 6.
Public Health Act 1965
1507
50-53 [Repealed by 10/63/1980]
PART 8
54-59 [Repealed by 1996/209]
PART 9
60 Interpretation
In this Part –
PART 10
METHYLATED SPIRIT
“methylated spirit” means any spirit which has been mixed with methyl- alcohol or with wood spirit, or to which any other substance has been added that has the like effect as methyl-alcohol or wood spirit in rendering such spirit unsuitable for human consumption and includes any spirit from which methyl-alcohol, wood spirit or such other substances has been unlawfully removed;
“spirit” means and includes alcohol and every other description of spiritous liquor.
61 Offences
Every person who consumes or attempts to consume or supplies to any
other person for the purpose of consumption methylated spirit, whether such
spirit has been subjected to any process of purification or not, and whether alone
or in solution with any other liquid, or who has any such methylated spirit or
solution containing methylated spirit in his possession for the purposes of
consumption by himself or by any other person, commits an offence and shall be
liable on conviction to imprisonment for a term not exceeding 3 months.
PART 11
MISCELLANEOUS PROVISIONS
62 [Repealed by 2004/270]
63 Powers of High Court in respect of certain orders under this Act
(1) In hearing and determining any application made by the Director for
any enforcement order or for a closing order or a demolition order under this Act,
a Judge shall have and may exercise all the powers which he has in his ordinary
jurisdiction and his determination shall be final.
(2) The power to make any of the orders mentioned in subsection (1) may
be exercised in addition to any penalty inflicted on any person for non-compliance
with this Act or any other enactment for the time being in force.
64 Language of public notice and notices
(1) Every public notice given under this Act shall be in both the English
and Niuean languages.
(2) All other notices, orders, forms, or other documents used for the
purposes of this Act shall be in the English or Niuean language, or in both languages
as circumstances require.
1508 Niue Laws 2006 Vol 3
65 Serving of notices and orders
Where any notice has to be given or any order to be issued under this Act
such notice or order may be served either by delivering the same personally to the
person on whom it is to be served or by leaving the same at his usual place of
abode or by posting the same either by ordinary letter or, where it is necessary or
desirable that proof of the date of receipt be ensured, by registered letter, addressed
to him at his usual place of abode or, as circumstances require, by affixing the
same in some conspicuous place on the land to which it relates.
66 Protection of persons acting under authority of Act
No person who, while exercising any powers conferred on him by this Act,
in good faith does or orders or causes to be done any act in pursuance or intended
pursuance of any of the provisions of this Act shall be under any civil or criminal
liability in respect of that.
67 Compensation
(1) No person injuriously affected by any act done in the exercise of any
powers conferred by this Act shall be entitled to compensation.
(2) No person injuriously affected by the total or partial destruction of any
building, dwelling, or thing under a demolition order under section 48 shall be
entitled to compensation, if such destruction was necessary by reason of any default
made in complying with this Act.
(3) If such destruction was necessary in the interest of public health and
without any default so made, any person injuriously affected by it, shall be entitled
to compensation from the Crown for any loss which he may have suffered as a
result of such destruction.
(4) Any compensation claimed under subsection (3) shall be assessed and
awarded by the Court and no compensation shall be assessed in excess of the
actual market value of the building, dwelling (or part of it) or thing in respect of
which the claim is made.
(5) In hearing and determining any claim for compensation a Judge shall
have and may exercise all the powers which he has in his ordinary jurisdiction
and his determination shall be final.
(6) Any compensation awarded to any person under this section shall
constitute a debt due to him by the Crown and shall be payable out of the
appropriate account of the public revenues of Niue.
68 Other Acts not affected
Nothing in this Act shall be so construed as to limit or derogate from the
provisions of any other Act providing for building permits or for minimum
requirements and the control of dwellings or buildings in respect of construction,
sanitation, maintenance, repair or in any other respect.
69 Offences (generan( �/p>
Every person commits an offence who –
(a) Fails to comply with any order, notice or direction given to him by
the Director under this Act;
(b) Wilfully obstructs, hinders, or resists the Director of Works or any
other person in the execution of any power conferred on either of
those officers or that person by this Act;
(c) Offends against or fails to comply with any condition, duty, or
obligation imposed on him by this Act;
Public Health Act 1965
1509
(d) Does or omits, or causes or knowingly permits or suffers to be done or omitted, any act, matter or thing contrary to this Act;
(e) Knowingly makes a substantially false statement in any application or in connection with any information which he may be required to furnish under this Act.
70 Penalties (generan( �/p>
Every person who commits an offence against this Act for which no penalty
is otherwise provided in this Act or in the Niue Act 1966, is liable to a fine not
exceeding 0.5 penalty units.
71 Laying poison
Every person is liable to a fine of 0.5 penalty units who without lawful
justification places any poison in any place so as to be a source of danger to human
beings or to animals.
72 Storage of drugs
(1) For the purposes of this section, the term “drug” (as defined in section
11) includes –
(a) Soaps and dusting powders; and
(b) Disinfectants, germicides, antiseptics, and preservatives used for
any purposes.
(2) Every person who has in his store or possession any drug for sale shall
store it in such a manner that the container is protected from damage and shall do
all things reasonably necessary to ensure that the contents are protected from
deterioration.
(3) Every person commits an offence who knowingly sells or offers for
sale any drug which has so deteriorated as to be harmful or dangerous to health.
(4) The provisions of section 36 shall apply with all necessary modifications.
(5) The Director may seize any drug which is or appears to be
unwholesome, unclean, damaged, deteriorated, perished, or injurious to health,
or which contains any decomposed organic substance.
(6) On seizing any drug as aforesaid the Director shall forthwith apply to
the Court for an order of forfeiture.
(7) Without limiting the provisions of section 69 and section 70 the Court
on hearing the application, may make such order as it thinks just for the restoration
of any drug seized or may order that the drug shall be forfeited and any such
drug shall be forfeited to the Crown accordingly and may be disposed of in such
manner as the Court directs.
73 [Spent]
74 Application of fees and fines
All fees, fines and other moneys received under this Act shall form part of
the public revenues of Niue and shall be paid into the appropriate account.
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1511
PUBLIC NOTARIES ACT 1998
1998/236 – 28 March 1994
satisfied that the person –
(a) Is of good fame and character; and
(b) Is competent to act as a public notary.
(2) A person holds the office of public notary at the pleasure of Cabinet.
4 Roll of public notaries
(1) The Clerk to the Cabinet must maintain a roll of public notaries and
enter on it the name of each person who for the time being holds the office of
public notary.
(2) The Clerk to the Cabinet must make the roll of public notaries available
for inspection by any person during normal office hours.
5 Offence
A person –
(a) Who performs in Niue any act, matter or thing pertaining to the
office, function or practice of a public notary; and
(b) Whose name is not on the roll of public notaries,
is guilty of an offence and is liable on conviction to a fine not exceeding 5 penalty
units.
6 [Spent]
1512 Niue Laws 2006 Vol 3
1513
PUBLIC REVENUES ACT 1959
1959/1 – 1 October 1959
1 Short title
2 Interpretation
PART 1
PART 6
OFFENCES
26 False declarations
27 Neglect to pay money into account
THE TREASURY
3 Administration of Act
4 Appointment of Financial Secretary
5 Financial Secretary may delegate
6 Accounting officers
7 Financial Secretary to be member of boards
PART 2
NIUE GOVERNMENT ACCOUNT
8 Public money to be kept in Government
Account
9 Government Account
10 Power of investment
11 Money collected for private persons
12 Deposits and trust money
13 Unclaimed deposits and trust money
PART 3
APPROPRIATION OF PUBLIC MONEY
14-18 [Repealed]
24A Rounding off transactions
PART 5
ANNUAL ACCOUNTS
25 Financial Secretary to furnish
28 Failure to appear for examination or
produce accounts
29 General penalty
30 Fines recoverable
PART 7
GENERAL PROVISIONS
31-31A [Repealed]
32 Succession in case of death or bankruptcy
33 [Repealed]
34 Recovery of money not accounted for
35 Financial Secretary’s instructions
36 Regulations and rules
37 Irrecoverable losses
38 Public stores
PART 8
PUBLIC SECURITIES
39 Custodians
40 Annual statement of investments
41 Taking and release of securities to the
Crown
42 Expenditure for protection of public
securities
PART 9
SURCHARGES
43 Meaning of a “deficiency or loss”
44 Deficiency or loss of public money or public
stores
45 Surcharge
46 Appeal to High Court
47 Set-off
1514 Niue Laws 2006 Vol 3
To make provision for the control of public moneys and public securities of Niue
1 Short title
This is the Public Revenues Act 1959.
2 Interpretation
In this Act –
“accounting officer” means any person who by any enactment, or
appointment is required to render any account, or who is charged with
the duty of collecting or receiving, or who does actually collect or
receive, any public money, or who is charged with the duty of
disbursing, or who does actually disburse, any public money, or who
is charged with the receipt, custody or disposal of or the accounting
for public stores or other public property;
“imprestee” means a person in whose hands any public money is placed
for expenditure in the public service;
“public money” means money or securities of any kind for the payment of
money, received for or on account of, or payable, or belonging to, or
deposited with the Government or any Department or agency of the
Government, and includes public securities;
“public securities” means securities representing the investment of any
public moneys;
“public stores” means chattels, machinery, livestock, or buildings in the
possession of or under the control of any person or department on
account of the Government.
3 Administration of Act
PART 1
THE TREASURY
Subject to the direction of Cabinet, the Financial Secretary shall be charged with the administration of this Act.
4 Appointment of Financial Secretary
On the occurrence from any cause of a vacancy in the office of Financial
Secretary (whether by reason of death, resignation, or otherwise) and in the case
of absence from duty of the Financial Secretary (from whatever cause arising)
and so long as any such vacancy or absence continues, the Public Service
Commission may appoint an officer of the public service to act as Financial
Secretary and such officer shall have and may exercise all the powers, duties and
functions of the Financial Secretary and the fact that he exercises such powers,
duties and functions shall be conclusive evidence of his authority to do so.
5 Financial Secretary may delegate
(1) The Financial Secretary may in writing either generally or particularly,
delegate to such officer or officers of the Treasury as he thinks fit all or any of the
power exercisable by him under this or any other Act, but not including this present
power of delegation.
(2) Subject to any general or special directions given or conditions attached
by the Financial Secretary, the officer to whom any powers are delegated under
this section may exercise those powers in the same manner and with the same
effect as if they had been conferred upon him directly by this section and not by
delegation.
Public Revenues Act 1959
1515
(3) Any person purporting to act under any delegation under this section shall be presumed to be acting in accordance with the terms of the delegation in the absence of proof to the contrary.
(4) Any delegation under this section may be made to a specified officer or to officers of a specified class, or may be made to the holder or holders for the time being of a specified office or class of offices.
(5) Every delegation under this section shall be revocable at will and no such delegation shall prevent the exercise of any power by the Financial Secretary. (6) Every such delegation shall, until revoked, continue in force according
to its tenor, notwithstanding the fact that the Financial Secretary by whom it was made may have ceased to hold office, and shall continue to have effect as if made by the successor in office of that Financial Secretary.
6 Accounting officers
(1) The Financial Secretary by writing under his hand, either generally or
particularly authorise any accounting officer stationed within or outside Niue to
receive any public moneys, and to give any receipts or acknowledgements in
respect of any such money and to endorse any cheque, draft, bill or other negotiable
instrument received in respect of such money.
(2) Any accounting officer receiving any money under any authority
conferred upon him by the Financial Secretary shall pay the money into such bank
or to the credit of such account as the Financial Secretary directs.
(3) Subject to any general or special directions given or conditions attached
by the Financial Secretary, an accounting officer on whom authority is conferred
under this section may exercise that authority in the same manner and with the
same effect as if it had been conferred on him directly by this section and not by
delegation.
(4) Every person purporting to act under any authority under this section
shall be presumed to be acting under the terms of the authority in the absence of
proof to the contrary.
(5) Any authority under this section may be given to a specified officer or
to officers of a specified class, or may be given to the holder or holders for the time
being of a specified office or class of offices.
(6) Every authority given under this section shall be revoked at will, and
no such authority shall prevent the exercise of any power by the Financial Secretary.
(7) Every such authority shall, until revoked, continue in force according
to its tenor, notwithstanding the fact that the Financial Secretary by whom it was
given may have ceased to hold office, and shall continue to have effect as if made
by the successor in office of that Financial Secretary.
7 Financial Secretary to be member of boards
(1) Notwithstanding anything to the contrary in any other Act, the Financial
Secretary shall be deemed to be a member of any board or other body of which
Cabinet directs the Financial Secretary shall be a member, being a board or other
body charged with the control of investment of public money or of any other
money administered by any department of the Government.
(2) In the absence of the Financial Secretary from any meeting of any such
board or other body, he may authorise any other officer of the Treasury to attend
the meeting in his stead. The fact that any other officer of the Treasury attends and
acts as a member of any board at any meeting shall be conclusive proof of his
authority to do so.
1516 Niue Laws 2006 Vol 3
PART 2
NIUE GOVERNMENT ACCOUNT
8 Public money is to be kept in Government Account
(1) All public money is the property of Government and shall, except as
herein otherwise provided, be kept in one account called the Niue Government
Account.
(2) The Financial Secretary may authorise the payment of any public money
to a bank account either by way of fixed deposit or current account.
(3) All money paid into the Niue Government Account or into any bank
account shall be deemed to be public money, the property of Her Majesty, or to be
money lent by Her Majesty to the Bank, and may not be removed from it except as
provided in this Act.
9 Government Account
The Niue Government Account shall consist of –
(a) The Appropriation Account comprising the accounts of all
departments of the Government to which shall be carried the
revenues of Niue;
(b) Every separate fund, account, or subsidiary account which by any
Act, or regulation is directed to form part of the Niue Government
Account or which, after notice to the Audit Office, the Financial
Secretary may open and keep with intent to make better provision
for accounting for money in the Niue Government Account.
10 Power of investment
(1) The Financial Secretary may invest or cause to be invested any balance
of the Niue Government Account, or any part of it, and may sell and convert or
cause to be sold and converted into money, any securities obtained through such
investments.
(2) Any investments made under this section shall be for such periods as
may be determined by the Financial Secretary and shall be by way of fixed deposit
with a bank in New Zealand, or by deposit in a Post Office Savings Bank, or in
such securities as are authorised in New Zealand for the investment of public
money.
(3) All such investments shall be charged against a separate account to be
called the Niue Assembly Cash Investment Account, and the interest earned on it
shall be credited to the Niue Government Account and credited to such funds or
accounts within the Niue Government Account as the Financial Secretary
determines.
(4) All money received upon the sale or conversion of any security or upon
the expiration of the period or periods for which money is placed on fixed deposit
at a bank shall be credited to the Niue Assembly Cash Investment Account and
shall become part of the general funds of the Niue Government Account unless
invested for a specific purpose when the money shall be applied for that purpose.
11 Money collected for private persons
(1) Whenever, by virtue of any agreement made by the Government and
any person or body, money due to that person or body is collected by the Financial
Secretary, or by some officer acting on his behalf, that money shall be deemed to
be and shall be dealt with as public money within the meaning of this Act; and
that money or so much of it as becomes payable shall without further appropriation
than this section, be issued and paid to that person in such proportions, in such
manner, and at such times as may be set forth in such agreement.
Public Revenues Act 1959
1517
(2) The Government shall not be liable to any such person for any money so payable into the Niue Government Account or into any separate Fund or account, except for money actually collected under any such agreement.
12 Deposits and trust money
(1) The following shall be deemed to be public money within the meaning
of this Act –
(a) Money deposited with any accounting officer pending the
completion of a transaction whereby the money may become
payable to the Government or repayable to the depositor or any
other person;
(b) Money paid into Court by virtue of any Act, rule or authority
whatsoever;
(c) Money payable to the Government in trust for any purpose.
(2) All such money shall be either paid into the Niue Government Account
or otherwise dealt with and accounted for by the person having custody of it as
the Financial Secretary, subject to this Act and to any rules made under it, directs.
(3) (a) The Financial Secretary may, without further authority than this
section, invest any particular sum or sums of such public money
by way of deposit with the Post Office Savings Bank or with any
bank in Niue.
(b) The investment of any such sum or sums and the period of
investment shall be at the absolute discretion of the Financial
Secretary and no person shall have any right of action against him
or against the Government in respect of the investment or the non-
investment of any such money.
(c) When any such sum or sums become repayable to the depositor or
other person entitled to it there shall be added the amount of the
interest certified by the Financial Secretary to have been earned .
(d) The Financial Secretary may reduce the amount of interest so
payable by the reasonable cost of arranging or administering the
investment.
13 Unclaimed deposits and trust money
Every sum of public money to which section 12 relates which is unclaimed
for a period of one year after having become payable to the depositor or other
person entitled to it shall, with accrued interest (if any) on it, be transferred to and
form part of the Niue Government Account; but the Financial Secretary may issue
and pay the same at any time to any claimant who establishes his claim to it to the
satisfaction of the Financial Secretary.
PART 3
APPROPRIATION OF PUBLIC MONEY
14-18 [Repealed by 2004/270]
19 Overexpenditure of items
(1) Where the head of any department of the Government is of the opinion
that the amount provided in the estimates for any item will be insufficient to meet
expenditure chargeable to that item, he shall report the particulars to the Financial
Secretary who, having regard to the circumstances of the case, may authorise the
over-expenditure of the amount provided for that item.
1518 Niue Laws 2006 Vol 3
(2) No approval given under this section shall in itself authorise a department to overspend the amount appropriated to any vote.
20 [Repealed by 2004/270]
21 Payments for which no specific appropriation
When any vote specified in an Appropriation Act contains an item for
contingencies, that item shall be deemed to be an appropriation for expenditure
on purposes other than those of the other items of the vote.
PART 4
THE PAYMENT OF PUBLIC MONEY
22 Authority for payment
The annual Appropriation Act shall be the authority for the payment of
money from the Niue Government Account.
23 Imprests
(1) Public money may be issued by way of imprest from the Niue
Government Accounts to such officers or to such accounts as the Financial Secretary
authorises for the payment of amounts payable by the Government.
(2) The Financial Secretary may in such cases as he thinks fit authorise an
imprest or official account to be opened and operated in the name of an officer,
either personally or by his official designation or in the name of an officer.
(3) With the prior approval in writing of the Financial Secretary more than
one officer may be authorised to operate on any such account.
24 [Repealed by 2004/270]
24A Rounding off transactions
(1) (a) Notwithstanding any other provision of this Act or any other Act,
the Financial Secretary may, when levying any fee, levy, duty or
impost, or making any assessment, or payment, round off the total
amount charged, levied, assessed or paid (as the case may be) to
the nearest multiple of 5 cents.
(b) Any amount rounded off under this section shall be rounded off in
favour of the person so charged, levied, assessed, or paid.
(2) Where under subsection (1) any amount is paid to any person in excess
of the amount which, but for this section, that person shall have been entitled to,
such excess amount shall be deemed to have been written off as if it were written
off under section 37.
PART 5
ANNUAL ACCOUNTS
25 Financial Secretary to furnish
(1) As soon as possible after the close of the financial year, the Financial
Secretary shall furnish to Cabinet a statement of receipts and payments for that
year together with separate income and expenditure accounts and balance sheets
for such activities, institutions or services of a commercial nature as Cabinet directs.
(2) Subject to the concurrence of the Audit Office, Cabinet may direct that
the commercial accounts and balance sheets prepared in terms of subsection (1)
shall be made up as at such date as he thinks fit.
Public Revenues Act 1959
1519
(3) Such annual accounts are to be transmitted forthwith to the Audit Office and, when finally certified by the Audit Office, are to be presented to the Assembly together with the report of the Audit Office on them.
26 False declarations
PART 6
OFFENCES
Every person who makes any declaration or gives any certificate required to be made or given by this Act, or by any regulations or rules made under it, knowing it to be false, shall be liable on conviction to imprisonment or a term not exceeding 6 months or to a fine not exceeding 2 penalty units, or to both.
27 Neglect to pay money into account
(1) Every person who refuses or neglects to pay any public money into the
account into which it is payable shall be liable on conviction to a fine not exceeding
2 penalty units.
(2) Every person who refuses or neglects to make any return or furnish
any account, vouchers, or other papers which he is required to make or furnish
under this Act, or under any rules or regulations made under it, shall be liable on
conviction to a fine not exceeding 0.5 penalty units.
28 Failure to appear for examination or produce accounts
Every person who fails to attend at the time and place required of him by
any person under this Act for the purpose of being examined, or who fails to
produce any accounts, books, vouchers, or papers in his possession or under his
control which he is so required to produce, or who refuses to be sworn or to answer
any lawful question shall be liable on conviction to a fine not exceeding 2 penalty
units.
29 General penalty
Every person who is guilty of any wilful act of commission or omission
contrary to any provision of this Act for which no penalty is expressly provided
shall be liable on conviction to a fine not exceeding 1 penalty unit.
30 Fines recoverable
All fines incurred under this Act shall, except where it is otherwise expressly
provided, be recovered upon the information of any person appointed by Cabinet
in that behalf either generally or in any particular case.
PART 7
GENERAL PROVISIONS
31-31A [Repealed by 2004/270]
32 Suppression in case of death or bankruptcy
On the death, resignation or removal of any accounting officer the balances
remaining at the credit of his public or official account shall on the appointment
of his successor vest in and be transferred to the public or official account of the
successor, or otherwise dealt with as the Financial Secretary directs; and on the
death, bankruptcy, or insolvency of any such accounting officer those balances
shall not constitute assets of his estate or be in any manner subject to the control of
his legal representative, assignee, or trustee.
1520 Niue Laws 2006 Vol 3
any public money or stores come shall be deemed to owe to the Government all such money or the value of all such stores for which he has not accounted in such manner as the Financial Secretary may direct; and all such money or the value of all such stores shall be recoverable as money due to the Crown.
35 Financial Secretary’s instructions
All accounting officers and other persons concerned in the collection, receipt,
custody or expenditure of public money or stores shall, subject to the provisions
of this Act and to any rules or regulations made under it, observe instructions
issued by the Financial Secretary with respect to public money or public stores or
to accounting for the same.
36 Regulations and rules
Cabinet may make all such rules or regulations as it deems necessary or
expedient for the purpose of giving full effect to this Act and for the due
administration of it, and in particular for all or any of the following purposes –
(a) For regulating the collection, receipt, custody, banking, issue,
expenditure, care and management of public money, and generally
for the guidance of all persons concerned with it;
(b) For regulating the purchase, safe custody, issue, sale or other
disposal, or writing off of public stores and for rendering accounts
of public stores.
37 Irrecoverable losses
(1) Except as provided by this section the authority of the Assembly shall
be obtained before any losses of public money or stores are finally written off:
Provided that this section shall not apply to any money the payment of which has
been remitted under any statutory authority or by any Court or other tribunal or
to any normal and unavoidable losses of stores.
(2) If any dispute arises as to what constitutes a normal and unavoidable
loss in respect of any stores or class of stores for the purpose of this section, the
decision of Cabinet shall be binding on all parties.
38 Public stores
This Act, and of any regulations or instructions made under it in their
application to public money with any necessary modifications apply to public
stores.
39 Custodians
PART 8
PUBLIC SECURITIES
The Financial Secretary and one other person to be appointed by Cabinet shall be the custodians of public securities.
Public Revenues Act 1959
1521
40 Annual statement of investments
(1) There shall be included in the annual accounts for each financial year a
statement of public securities showing details of public securities held at the
commencement of that financial year, acquired or disposed of during that year
and held at the close of it.
(2) Such statement shall be presented to the Niue Assembly together with
the annual accounts when audited.
41 Taking and release of securities to the Crown
(1) Wherever security is taken in respect of an advance of public money,
unless any enactment provides otherwise, the security shall be given to or taken
in the name of Her Majesty.
(2) Where any security is vested in Her Majesty Cabinet may, on behalf of
Her Majesty, exercise any powers, functions, and rights (including any power of
disposal) and undertake and perform any liabilities, in respect of or in connection
with the security which could be exercised, undertaken or performed by Her
Majesty.
42 Expenditure for protection of public securities
(1) (a) Subject to this section, money may be expended out of any fund or
account of the Niue Government Account for the protection,
preservation and improvement of any real or personal property on
the security of which any money in that fund or account has been
lawfully invested.
(b) The authority conferred by this section may be exercised
notwithstanding the prior exercise in respect of the mortgaged
property of any power of sale or of entry into possession.
(2) The authority conferred by this section shall extend to authorise the
expenditure out of any fund or account as aforesaid of money required for the
planting of any land, the employment of labour on it, the making of further
advances to mortgagors, the carrying on of any farming business, and for such
other purposes as may be considered necessary to prevent or minimise any loss
on the realisation of any securities as aforesaid.
(3) All money expended under this section shall be paid out of money
appropriated for the purpose by the Assembly.
(4) No amount shall be expended under this section in respect of any
property without the specific approval of Cabinet.
(5) This section is in addition to and not in substitution for any powers or
authorities conferred otherwise than by or under this section.
PART 9
SURCHARGES
43 Meaning of “deficiency or loss”
In this Part, “deficiency or loss” means –
(a) Any deficiency or loss of, or failure to fully and properly account
for, public money or public stores, by reason of –
(i) The wilful or negligent omission of any person or persons to
collect, receive, or account for any public money or public stores;
or
(ii) The application and charging of any public money to any
service or purpose for which it was not legally available or
applicable; or
1522 Niue Laws 2006 Vol 3
(iii) The payment of any public money without proper authority or without being properly vouchered; or
(iv) The failure to comply with any enactment or any rules or instructions made or issued pursuant to any enactment;
(b) Any deficiency or loss of public money or public stores, or expenditure of public money, or damage to public stores, or expenditure for the replacement or repair of public stores caused through –
(i) The fraud, default or neglect, or improper or unauthorised use
by any person or persons;
(ii) The failure of any person or persons to comply with any
enactment, or any rules or instructions made or issued under
any enactment.
44 Deficiency or loss of public money or public stores
Where there has been a deficiency or loss of public money or public stores,
the permanent head or administrative head, as the case may be, of the Government
department or Government agency responsible for the money or stores shall, as
soon as practicable after the deficiency or loss occurs, report the matter to the
Financial Secretary.
45 Surcharge
(1) If it appears to the Financial Secretary that there has been any deficiency
or loss in respect of any public money or public stores, the Financial Secretary
may, by notice in writing require any person who appears to the Financial Secretary
to be in default or responsible for such deficiency or loss, to show cause why he
should not be surcharged with the amount of deficiency or loss.
(2) Every notice given under subsection (1) shall –
(i) Specify the amount of the surcharge; and
(ii) Include a statement of the grounds on which it is considered
the person is liable to be surcharged; and
(iii) State the date (being a date not less than 14 days from the date
of the notice) by which the person is required to show cause
why he should not be surcharged.
(3) Where any amount of any deficiency or loss cannot be accurately
determined, the Financial Secretary may estimate the deficiency or loss and, in
the absence of proof to the contrary, that estimate shall for all purposes be deemed
to be correct.
(4) On receipt of an explanation by a person who has been required to
show cause why he should not be surcharged, or, where the Financial Secretary is
satisfied on reasonable grounds that the notice given under subsection (1) has
been received by the person, then in default of any such explanation, the Financial
Secretary shall, if he considers that the circumstances warrant it –
(a) Surcharge the person for the amount of the deficiency or loss or
such lesser amount as he thinks fit; and
(b) Notify the person surcharged in writing of the date by which the
surcharge must be satisfied.
(5) Where the Financial Secretary is of the opinion that 2 or more persons
are responsible for any deficiency or loss, he may surcharge each person for the
full amount of the deficiency or loss, and in that event, those persons shall be
jointly and severally liable for such amount.
Public Revenues Act 1959
1523
(6) The Financial Secretary may revoke, or reduce the amount of any surcharge made under this section.
(7) The amount of any unsatisfied surcharge under this section shall be a debt due to the Crown by the person surcharged, and may be recovered accordingly in the Court, or by way of set-off as provided for in section 47.
(8) If the Financial Secretary so directs, no money (other than salary or
wages) payable to or claimed by a person surcharged under this section shall be
paid to him by the Crown until the surcharge has been satisfied.
(9) Nothing in this section shall prevent the recovery without surcharge
from any person liable to be surcharged, of the amount of any deficiency or loss,
or of such part of it as the Financial Secretary thinks fit, as a debt due to the Crown.
(10) All money recovered under this section shall be paid into the account
which suffered the deficiency or loss in respect of which the surcharge was made.
46 Appeal to High Court
Any person who has been surcharged under section 45(4)(b), and who is
dissatisfied with the surcharge, may within 21 days after the date of service on
him of notice of the surcharge, appeal to the High Court which, after making such
investigation as it deems equitable, may make such order as the Court thinks fit
either confirming the surcharge, or directing the relief of the appellant from it
either wholly or in part in such manner as the Court may direct.
47 Set-off
(1) Where –
(a) Under section 45 the Financial Secretary has surcharged any person;
or
(b) Any person owes any sum of money to the Government or any
agency of the Government and such sum is overdue for payment,
and such person is entitled to be paid any money by the Crown or any agency of
the Government, the Financial Secretary may without further authority than this
section, where any surcharge remains unsatisfied or such sum remains overdue
for payment, set-off any sum to which the person is so entitled against the amount
surcharged or overdue as the case may be, either in one sum or by deduction over
a period of time, and shall send to the person a statement of the amount or amounts
so set-off.
(2) For the purposes of this section, a sum of money shall, in the absence of
evidence to the contrary, be deemed to be overdue for payment when it has been
due and owing for a period of 3 months.
(3) Notwithstanding section 45 (8) a set-off under this section may be made
against salary or wages, provided the amount so set-off does not exceed 20 per
cent in any one pay period of the net amount after income tax of such salary or
wages.
1524 Niue Laws 2006 Vol 3
1525
PUBLIC SERVICE SAVINGS AND LOAN SOCIETY ACT 1980
1980/55 – 23 June 1980
|
1 |
Short title |
PART 3 | |||||
|
2 |
Interpretation |
FINANCIAL PROVISIONS | |||||
|
14 |
Accounts and audit | ||||||
|
PART 1 |
15 |
Remuneration Fund | |||||
|
SOCIETY ESTABLISHED |
16 |
Deposits | |||||
|
3 |
Public Service Savings and Loan Society |
17 |
Withdrawals | ||||
|
established |
18 |
Deposits banked | |||||
|
4 |
Functions of Society |
19 |
Proportionate sum retained | ||||
|
5 |
Powers of Society |
20 |
Investment in Government securities | ||||
|
6 |
Constitution and Rules |
21 |
Loans | ||||
|
7 |
Registration with Registrar | ||||||
|
8 |
Meetings of Society |
PART 4 | |||||
|
MISCELLANEOUS PROVISIONS | |||||||
|
PART 2 |
22 |
Sealing of deeds | |||||
|
MANAGEMENT OF SOCIETY |
23 |
Investigation of Society | |||||
|
9 |
Management of Society |
24 |
Suspension or dissolution | ||||
|
10 |
Functions of Management Committee |
25 |
[Repealed] | ||||
|
11 |
Management Committee meetings | ||||||
|
12 |
Procedure |
SCHEDULES | |||||
|
13 |
Officers of Society |
To make provision for the establishment of the Public Service Savings and
Loan Society
1 Short title
This is the Public Service Savings and Loan Society Act 1980.
2 Interpretation
In this Act –
“Constitution” means the Constitution of the Public Service Savings and
Loan Society contained in Schedule 1;
“Management Committee” means the Management Committee established
under section 9;
“Officer” includes the Chairman or his Deputy or Secretary or Treasurer of
the Society;
“Registrar” means the Registrar of Incorporated Societies;
“Rules” means the rules of the Management Committee of the Public Service
Savings and Loan Society contained in Schedule 2;
“Society” means the Public Service Savings and Loan Society established
under section 3.
1526 Niue Laws 2006 Vol 3
PART 1
SOCIETY ESTABLISHED
3 Public Service Savings and Loan Society established
(1) The Niue Public Service Savings and Loan Society is hereby established
and it shall be a body corporate.
(2) The Society shall have perpetual succession and a common seal and
shall be capable of suing and being sued and of doing all such things as bodies
corporate may lawfully do.
4 Functions of Society
The principal functions of the Society shall be –
(a) To encourage thrift among the Society members;
(b) To educate members in financial responsibility;
(c) To receive the savings of members as contribution for shares or on
deposit;
(d) To make loans to members for the purposes specified in the
Constitution; and
(e) To distribute profits under co-operative principles.
5 Powers of Society
The Society shall have full powers –
(a) To establish, operate, manage or maintain such projects, schemes,
or arrangements for the benefits of its members as it may think fit;
(b) To acquire, by purchase or otherwise both real and personal
property of whatsoever kind or nature or wheresoever situate;
(c) To invest moneys on deposit in any bank, or in any bonds, or on
mortgage of any land or buildings, in or outside Niue, or in or on
debentures, debenture-stocks, stocks, funds, shares or securities of
any corporation or company carrying on business in or outside
Niue;
(d) To grant, sell, convey, surrender, yield up, mortgage, demise, let,
reassign, transfer or otherwise dispose of any land, or buildings,
mortgages, debentures, debenture-stocks, funds, securities, vessels,
goods and chattels for the time being vested in the Society, upon
such terms as the Society may deem fit;
(e) To erect any buildings or like construction and effect any
improvement to them;
(f) To borrow or lend money upon such terms as the Society shall think
fit, and to raise money by private subscriptions; and
(g) Generally to do such other things as may appear to be incidental or
conducive to the functions of the Society.
6 Constitution and Rules
(1) (a) The Constitution of the Society may be amended or changed at any
time by Cabinet acting upon a resolution passed by two thirds of
the members present and voting at a general meeting of the Society.
(b) The members present shall not be less than 60.
(2) The Rules may be amended or changed at any time by a resolution
passed at a general meeting of the Society and such amendments or changes shall
be filed with the Registrar under section 7(1)(b).
Public Service Savings and Loan Society Act 1980
1527
7 Registration with Registrar
(1) The Society shall forward to the Registrar for registration the following –
(a) Notice of the address of the registered office of the Society and any
change to it;
(b) A copy of any amendment to the Rules and certified as correct by
at least 2 officers of the Society;
(c) A list of the names and addresses of the members of the Society,
and any change in it, certified as correct by an officer or officers of
the Society;
(d) The name and address of any person or persons appointed under
section 9 to sign deeds, documents and other instruments;
(e) A report concerning its projects, schemes and arrangements during
the year after the end of each financial year;
(f) A statement of its accounts after the end of each financial year; and
(g) A copy of the report of the auditors.
(2) Notification under subsection (1) shall be as soon as conveniently
possible or within such period as the Registrar may reasonably require.
(3) Any person or member may inspect any of the documents registered
under this section.
(4) A fee of $2 shall be payable for registering any document under this
section.
(5) A fee of 50 cents shall be payable for the inspection of documents filed
with the Registrar under this Act.
8 Meetings of Society
(1) There shall be held each year not later than 3 months after the financial
year a general meeting of the Society to be known as the Annual General Meeting.
The order of business shall include –
(a) Minutes of the last Annual General Meeting and any general
meeting held since that meeting;
(b) Report of the Management Committee;
(c) Determination of the rate of interest on share capital;
(d) Consideration of notices of motion;
(e) Election of Management Committee; and
(f) Determinations of the rate of remuneration for the officers of the
Management Committee and the auditor.
(2) In considering subsection (1)(c) the Annual General Meeting shall have
before it a recommendation from the Management Committee. Before the rate of
interest can be approved in variance to that recommended by the Management
Committee a Special Meeting held shall also approve the interest rate so varied.
(3) The Society shall at the request of the Management Committee or at
the written request of at least 10 members call a Special Meeting of the Society.
Any request so made shall state the object of the proposed meeting.
(4) At least 14 days notice of any Annual or Special Meeting shall be given
by individual notice in writing to members and public notice.
(5) Thirty members of the Society shall constitute a quorum.
1528 Niue Laws 2006 Vol 3
PART 2
MANAGEMENT OF SOCIETY
9 Management of Society
(1) The Annual General Meeting of the Society shall elect from amongst
their members –
(a) A Management Committee of a –
(i) Chairman;
(ii) Vice Chairman;
(iii) Secretary;
(iv) Treasurer;
(v) 1 to 3 other members;
(b) The names of persons elected under paragraph (a) shall be
communicated to Cabinet not later than 14 days after their election.
(2) All members of the Management Committee shall be of the age of 20
years or more.
(3) The Management Committee shall make arrangements for the internal
audit of the accounts of the Society at least once every 3 months or at such intervals
decided upon by the Management Committee.
(4) At the end of each financial year the books and accounts shall be audited
by such person or persons as are appointed by the Management Committee with
the approval of Cabinet.
10 Functions of Management Committee
(1) The general management and control of the Society shall be in the
Management Committee.
(2) Without limiting the generality of subsection (1) the Management
Committee shall –
(a) Approve, defer, or reject applications for membership;
(b) Expel or discipline members as provided for in the Constitution;
(c) Approve, defer or reject applications for loans;
(d) Have general responsibility for the investment of funds of the
Society;
(e) Recommend the interest rate on shares to the Annual General
Meeting of the Society; and
(f) Do all such other things as are necessary for the achievement of the
purposes of this Act.
11 Management Committee meetings
(1) The Management Committee shall hold meetings at least once in each
month.
(2) Every meeting shall be presided over by the Chairman or, in the absence
of the Chairman, the Vice Chairman or, in the absence of the Vice Chairman, some
other member of the Management Committee nominated by the Management
Committee to preside over the meeting.
(3) At all meetings of the Management Committee 3 members of the
Management Committee shall form a quorum.
(4) At any meeting of the Management Committee the Chairman or in the
absence of the Chairman, the Vice Chairman or the person nominated to preside
over the meeting shall have a deliberative vote and in the case of an equality of
votes a casting vote.
(5) All questions before the Management Committee shall be decided by a
majority of votes recorded in it.
Public Service Savings and Loan Society Act 1980 1529
12 Procedure
Subject to this Act, and rules made under it, the Management Committee
may regulate its procedure in such manner as it thinks fit.
13 Employees of Society
(1) The Management Committee may employ such persons and take such
other steps as they think necessary and expedient for properly carrying out their
duties.
(2) Any person so appointed may hold office in addition to or in conjunction with any other office.
14 Accounts and audit
PART 3
FINANCIAL PROVISIONS
(1) The Society shall keep or shall cause to be kept proper accounts and other records in respect of its operations and shall cause to be prepared statements of accounts in respect of each financial year as soon as possible.
(2) The accounts of the Society shall be audited by such person or persons
as are appointed under section 9(4).
15 Remuneration Fund
(1) There shall be established a Remuneration Fund to which every member
of the Society shall contribute annually a sum prescribed by the Rules of the Society.
(2) There shall be paid from the Remuneration Fund to the members of
the Management Committee such remuneration by way of salary, fees, or
allowances as may be prescribed by the Rules of the Society either generally or in
respect of any particular person or persons or class or classes of persons.
16 Deposits
Deposits may be received on behalf of the Society upon or subject to such
terms and conditions as may be prescribed by this Act or by any regulations or
Rules made under this Act.
17 Withdrawals
Withdrawals may be made upon or subject to such terms and conditions as
may be prescribed by this Act or Rules made under this Act.
18 Deposits banked
(1) The amount of the deposits and all other sums of money received by
the Society, except so much as is retained for daily requirements, shall with all
convenient speed, be deposited in a trading bank or the Post Office Savings Bank
Account in the name of the Society.
(2) The said account shall be operated only by cheque signed by one
member of the Society for the time being authorised by the Management
Committee in that behalf, and countersigned by one of the Management
Committee.
19 Proportionate sum retained
The Society shall at all times keep in cash or in other resources immediately
available as may be approved in that behalf by Cabinet sums amounting in the
aggregate to not less than 5 percent of the total amount for the time being standing
to the credit of the depositors.
1530 Niue Laws 2006 Vol 3
20 Investment in Government securities
The Society shall invest a minimum of 20 per cent of its funds in any given
year in Niue Government securities or New Zealand Government securities.
21 Loans
(1) The Society may with the approval of the majority of members at the
Annual General Meeting lend to the Government such sums of money as may be
requested by the Government and the interest on such a loan shall be such figure
as negotiated by the Management Committee and the Cabinet.
(2) The Management Committee shall negotiate an agreement with the
Government over the repayment of the loan.
(3) The Management Committee shall not borrow any money without a
prior resolution of the Society and the prior approval of Cabinet.
22 Sealing of deeds
PART 4
MISCELLANEOUS PROVISIONS
All deeds, documents and other instruments requiring the seal of the Society shall be signed by an officer of the Society or by such other person or persons as the Society shall appoint and such signing shall be taken as sufficient evidence of the due sealing of such deeds, documents and other instruments.
23 Investigation of Society
The Society may at any time be investigated by Cabinet –
(a) Upon receipt of a resolution of the Society passed by two thirds of
the members present and voting and such resolution to be
forwarded by the Secretary of the Society to the Cabinet not later
than 7 days from the date it was passed, or;
(b) If it has reason to believe that the affairs of the Society are such as to
require an investigation.
24 Suspension or dissolution
The Society may at any time be suspended or dissolved by Cabinet upon
such terms and conditions it may decide –
(a) Upon receipt of a resolution of the Society passed by two thirds of
the members present and voting and such resolution to be
forwarded by the Secretary to the Cabinet not later than 7 days
from the date it was passed;
Provided that not less than 60 members were present; or
(b) If it is satisfied after an investigation has been conducted that the
Society be dissolved.
25 [Repealed by 2004/270]
––––––––––––––––––––
Public Service Savings and Loan Society Act 1980 1531
1 Name
SCHEDULES
SCHEDULE 1
CONSTITUTION OF THE PUBLIC SERVICE SAVINGS AND LOAN SOCIETY
Section 6(1)
The name of the Society shall be the Public Service Savings and Loan Society.
2 Membership
Membership of the Society shall be limited to members and retired members of
the Niue Public Service Association (Incorporated), who in the opinion of the Society are
honest, industrious and of good habits, and for the time being are resident on Niue.
3 Cessation of membership
(1) A member ceases to be a member of the Society –
(a) Upon dissolution of the Society; or
(b) Upon the death of the member; or
(c) Where a member leaves Niue permanently; or
(d) Upon the resignation of a member from the Society.
(2) Upon ceasing to be a member for any reasons whatsoever a member ’s shares
will be refunded less any liability to the Society, and the Management Committee shall
have the power to defer the refund of shares for up to 3 months.
4 Suspension or expulsion
Any member charged with misconduct or attempting to injure the Society in any
manner whatsoever shall, if found guilty by the Management Committee in respect of
such damage, be liable to suspension or expulsion.
5 Disposal of shares
Shares may be transferred from one member to another and subject to the approval
of the Management Committee.
6 Loans
(1) Any member may borrow from the Society.
(2) A loan may be granted to any member of the Society subject to the prior
approval of the Management Committee.
(3) To obtain a loan from the Society a member must apply on the prescribed
form to the Secretary of the Management Committee.
(4) The borrower shall sign an agreement with the Chairman of the Management
Committee or in the absence of the Chairman any other member of the Management
Committee who is authorised for that purpose setting out the terms and conditions of the
loan.
(5) The borrower shall be required to give such security for the repayment of a loan as may be decided by the Committee.
(6) Loans may be granted to members for productive and other purposes but no loan shall be advanced for any purposes which the Management Committee considers to be unnecessary or contrary to the best interests of the member.
(7) A loan shall be applied for a specific purpose and it shall be granted and used
only for that purpose. If a loan or any part of the amount lent is used for any other purpose
the loan shall be immediately recalled in its entirety, by the Management Committee.
1532 Niue Laws 2006 Vol 3
7 Failure to repay loans
The Management Committee may take such action as may be necessary to recover
arrears of repayments and in the case of persistent defaulting in payment, action may be
taken in the civil court to recover arrears as a debt to the Society.
8 Insurance Fund
There shall be established an Insurance Fund of the Society to which the borrower
shall pay in cash an insurance premium not exceeding one percent of the amount of the
contribution and loan and in the event of the death of the borrower the balance of the
loan shall be a charge against the Insurance Fund but the amount so charged shall not
include the amount of arrears of interest or principal due at the date of death of the
borrower.
9 Banking
(1) All monies paid to the Society shall be paid to the Treasurer of the Society and
shall be deposited by him in the name of the Society in a bank approved by the Society.
(2) All withdrawals from the funds of the Society in a bank must be signed by
any two of the following, namely, the Chairman, Treasurer and Secretary of the
Management Committee.
10 Financial year
The financial year of the Society shall end on 31 December of each year.
11 Income of the Society
Income by way of Post Office Savings Bank interest, interest on loans and other
investments shall at the end of each financial year and after payment of expenses be dealt
by the Society at the Annual General Meeting, as follows –
(a) A third to be placed in a special reserve fund; and
(b) Two thirds payment to members in proportion of the fully paid up shares
standing in a member ’s name as on 31 December each year.
–––––––––––––––––––– SCHEDULE 2
Section 6(2)
RULES OF THE MANAGEMENT COMMITTEE
1 Functions
Functions of the Management Committee shall be those functions as provided for
in section 10(2) of the Act.
2 Members
The members of the Management Committee shall consist of people appointed
under section 9 of the Act.
3 Chairman
The Chairman shall –
(a) Be responsible for the smooth running and wellbeing of the Management
Committee;
(b) See that the decisions of the Management Committee are carried out
promptly;
(c) Ensure that clear decisions are made on matters under consideration by
the Management Committee;
Public Service Savings and Loan Society Act 1980
1533
(d) Keep the Secretary and the Treasurer up to the required standard in fulfilment of their respective duties;
(e) Go over the Agenda with the Secretary if necessary with the Treasurer as well before any meeting;
(f) Prepare a concise report of the Management Committee’s work during the year of presentation to the General Meeting after 31 December each year.
4 Vice Chairman
The Vice Chairman shall –
(a) Act for the Chairman in his absence; and
(b) Do all he can to aid the Chairman in the proper conduct of the
Management Committee.
5 Secretary
The Secretary shall –
(a) Keep correct and proper minutes of all meetings of the Management
Committee including the general meeting and see that the minutes are
confirmed at the next following meeting;
(b) Keep a record of all members of the Society;
(c) Attend to all the correspondence of the Management Committee;
(d) Receive and submit all applications for loans to the Management
Committee for consideration;
(e) Notify applicants of the Management Committee’s decision;
(f) Arrange a date for the signing of the agreement by the Chairman and the
applicant where a loan is approved;
(g) Obtain from the applicant whose loan is approved an assignment of salary;
(h) Complete the withdrawal slip with the Chairman for the amount of the
loan approved and personally hand it to the Treasurer;
(i) Carry out the decisions of the Management Committee;
(j) Send out Notices of Meeting to all members in good time; and
(k) Go through the accounts with the Treasurer.
6 Treasurer
The Treasurer shall –
(a) Keep proper records of accounts in an orderly and legible manner;
(b) Receive and receipt all membership entrance fees;
(c) Receive and receipt all member ’s shares contributions;
(d) Receive and receipt all members’ loan repayments;
(e) Receive and receipt all members’ insurance premium payments, i.e. on
all approved loans;
(f) Pay all fees, shares contributions, insurance premiums, and loan
repayments into the Society’s Post Office Savings Account;
(g) Arrange payment of loans to applicants only on receipt of their insurance
premium cash payment and receipt of withdrawal slips from the Secretary;
(h) Prepare and present the statement of accounts and balance sheet to the
Management Committee at the end of each three months;
(i) Prepare and present the annual balance sheet to the Management
Committee within one calendar month of the completion of the financial
year for presentation by the Chairman to the General Meeting with his
report; and be ready to assist the Chairman to answer any questions;
1534 Niue Laws 2006 Vol 3
(j) Have the necessary books, cash book, ledger, receipt book, files for accounts and receipts and the like, available to the Auditor or the Management Committee as required; and
(k) Upon the request of any member, present to that member a full statement of that member ’s financial position with the Society.
7 Conditions of loan
(1) A member may borrow from the Society –
(a) An amount equivalent to his fully paid up share or shares; and
(b) An amount equivalent to 50 percent of that fully paid up share or shares.
(2) If a member intends to buy a new car, van or truck, who has had enough
share or shares to enable a member to pay two thirds of the price of the vehicle, the
Management Committee may grant and advance the remaining one third to such member
to enable him or her to pay cash for the vehicle.
(3) Any individual loan at any one time shall not exceed the amount of $9000.
(4) The maximum period for the repayment of a loan will be 5 years.
(5) Where a member borrows from the Society –
(a) An amount equivalent to his fully paid up share or shares the rate of
interest shall be one percent; and
(b) An amount equivalent to fifty percent of the fully paid up share or shares
the interest rate shall be 6 percent increasing to 7 percent for penalty of
the outstanding payments after the expiration date for the agreement.
8 Accounts
The Society’s accounts shall be kept in an orderly and legible manner by the
Treasurer, who shall present a statement to the Management Committee showing the
financial position of the Society as at the end of each 3 months.
9 Reports
The Chairman shall submit a report annually to the General Meeting of the Society.
The report will cover the management and control of the Society’s business for the past
financial year and it shall be accompanied by an audit statement of accounts on the state
of the insurance fund.
10 Remuneration
(1) The members entitled to receive remuneration under section 15 of the Act
shall receive the following amounts –
(a) Chairman $100;
(b) Vice Chairman $60;
(c) Treasurer $200;
(d) Secretary $150; and
(e) Hon Auditor $100.
(2) Every member shall contribute annually to the Remuneration Fund established
under section 15 a sum of $4.
11 Fees
Every member shall pay an entrance fee of $2 which under no circumstances shall
be refundable.
1535
RACE RELATIONS ACT 1972
1972/77 – 28 June 1972
|
13 |
Evidence |
|
14 |
Procedure after investigation |
|
15 |
Remedies |
|
16 |
Damages |
|
17 |
Licences and registration |
|
18 |
Access by the public to places, vehicles and |
|
facilities | |
|
19 |
Inciting racial disharmony |
|
20 |
No prosecution without consent |
|
21 |
Condition in restraint of marriage |
|
22 |
Offences |
|
23 |
Other enactments not affected |
|
24 |
Charitable instruments |
|
25 |
Savings |
To affirm and promote racial equality in Niue and to implement the International Convention on the Elimination of All Forms of Racial Discrimination
1 Short title
This is the Race Relations Act 1972.
2 Act to bind the Crown
This Act shall bind the Crown.
3 Access by the public to places, vehicles and facilities
(1) It shall be unlawful for any person –
(a) To refuse to allow any other person access to or use of any place or
vehicle which members of the public are entitled or allowed to enter
or use; or
(b) To refuse any other person the use of any facilities in that place or
vehicle which are available to members of the public; or
(c) To require any other person to leave or to cease to use that place or
vehicle or those facilities –
by reason of the colour, race, or ethnic or national origins of that person or of any
relative or associate of that person.
(2) In this Act “relative”, in relation to any person, means any person who –
(a) Is related to him by blood, marriage, affinity, or adoption; or
(b) Is wholly or mainly dependent on him; or
(c) Is a member of his household.
(3) In this section, “vehicle” includes a vessel, an aircraft, or a hovercraft.
1536 Niue Laws 2006 Vol 3
4 Provision of goods and services
(1) It shall be unlawful for any person who supplies goods, facilities or
services to the public or to any section of the public –
(a) To refuse or fail on demand to provide any other person with those
goods, facilities, or services; or
(b) To provide any other person with those goods, facilities, or services
on less favourable terms or conditions than those upon or subject
to which he would otherwise make them available –
by reason of the colour, race, or ethnic or national origins of that person or of any
relative of that person as defined in section 3 or of any associate of that person.
(2) For the purpose of subsection (1), but without limiting the meaning of
the terms goods, facilities, and services in that subsection, “facilities” includes
facilities by way of banking or insurance or for grants, loans, credit or finance.
5 Employment
(1) It shall be unlawful for any employer, or any person acting or purporting
to act on behalf of any employer –
(a) To refuse or omit to employ any person on work of any description
which is available and for which that person is qualified; or
(b) To refuse or omit to offer or afford any person the same terms of
employment, conditions of work, and opportunities for training
and promotion as are made available for persons of the same
qualifications employed in the same circumstances on work of that
description; or
(c) To dismiss any person in circumstances in which other persons
employed by that employer on work of that description are not or
would not be dismissed –
by reason of the colour, race, or ethnic or national origins of that person or of any
relative of that person as defined in section 3 or of any associate of that person.
(2) It shall be unlawful for any person concerned with procuring
employment for other persons or procuring employees for any employer to treat
any person seeking employment differently from other persons in the same
circumstances by reason of the colour, race, or ethnic, or national origins of that
person or of any relative of that person as defined in section 3 or of any associate
of that person.
(3) Nothing in this section shall apply in respect of the employment of any
person for any purpose for which persons of a particular ethnic or national origin
have or are commonly found to have a particular qualification or aptitude.
(4) Nothing in this section shall apply to the employment or an application
for employment of a person on a ship or aircraft if the person employed or seeking
employment was engaged or applied for it outside Niue.
(5) In this section, “employment” includes the employment of an
independent contractor.
6 Land, housing and other accommodation
(1) It shall be unlawful for any person, on his own behalf or on behalf or
purported behalf of any principal –
(a) To refuse or fail to dispose of any estate or interest in land or any
residential or business accommodation to any other person; or
(b) To dispose of such an estate or interest or such accommodation to
any person on less favourable terms and conditions than are or
would be offered to other persons; or
Race Relations Act 1972
1537
(c) To treat any person who is seeking to acquire or has acquired such an estate or interest or such accommodation differently from other persons in the same circumstances; or
(d) To deny any person, directly or indirectly, the right to occupy any land or any residential or business accommodation; or
(e) To terminate any estate or interest in land or the right of any person
to occupy any land or any residential or business accommodation –
by reason of the colour, race, or ethnic or national origins of that person or of any
relative of that person as defined in section 3 or of any associate of that person.
(2) It shall be unlawful for any person, on his own behalf or on behalf or
purported behalf of any principal, to impose or seek to impose on any other person
any term or condition which limits, by reference to colour, race, or ethnic or national
origins, the persons or class of persons who may be the licensees or invitees of the
occupier of any land or any residential or business accommodation.
(3) For the purposes of this section –
“dispose” includes sell, assign, lease, let, sublease, sublet, license, or
mortgage, and agree to dispose;
“residential accommodation” includes accommodation in dwelling-house,
flat, hotel, motel, boarding house, or camping ground.
7 Advertisements
It shall be unlawful for any person to publish or display or to cause or
allow to be published or displayed, any advertisement or notice which indicates,
or could reasonably be understood as indicating, an intention to commit a breach
of any of the provisions of sections 3 to 6.
8 Liability of principals and employers
Anything which is done or omitted in contravention of sections 3 to 7 by a
person as the agent or employee of another person shall be treated for the purposes
of sections 3 to 7 as done or omitted by that other person as well as by him, unless
it is done or omitted without that other person’s express or implied authority,
precedent or subsequent.
9 Measures to ensure equality
Anything done or omitted which would otherwise constitute a breach of
sections 4 to 7 shall not constitute such a breach if –
(a) It is done or omitted in good faith for the purposes of assisting or
advancing particular persons or groups of persons or persons of a
particular colour, race, or ethnic or national origin; and
(b) Those groups or persons need or may reasonably be supposed to
need assistance or advancement in order to achieve an equal place
with other members of the community.
10 Civil proceedings
Any person who considers himself aggrieved by a breach of any of the
provisions of sections 3 to 7 (the aggrieved person) may bring civil proceedings in
the Court against any person alleged to have committed the breach, and in those
proceedings the aggrieved person may seek such of the remedies described in
section 15 as he thinks fit.
1538 Niue Laws 2006 Vol 3
11 Investigation and conciliation where proceedings commenced
(1) Where proceedings are commenced under section 10 the Court shall
refer the case to a conciliator appointed by the Court and shall adjourn the
proceedings accordingly.
(2) The conciliator appointed under subsection (1) shall investigate the case
referred to him and carry out the functions described in section 14.
12 Proceedings of the conciliator
(1) Every investigation by a conciliator appointed under section 11 shall
be conducted in private.
(2) The conciliator may hear or obtain information from such persons as
he thinks fit.
(3) Subject to this Act, the conciliator may regulate his procedure in such a
manner as he thinks fit.
13 Evidence
(1) The conciliator appointed under section 11 may require any person
who in his opinion is able to give any information relating to the matter which is
being investigated by the conciliator to furnish to him any such information and
to produce any documents or papers or things which in the conciliator ’s opinion
relate to any such matter as aforesaid and which may be in the possession or
under the control of that person.
(2) (a) The conciliator may summon before him and examine on oath any
person who in the conciliator ’s opinion is able to give any such
information as aforesaid and for that purpose may administer an
oath.
(b) Every such investigation by the conciliator shall be deemed to be a
judicial proceedings within the meaning of section 181 of the Niue
Act 1966.
(3) Every such person shall be obliged to answer any questions put to him
by the conciliator but shall have the same privilege in relation to the production of
documents and papers and things as witnesses have in any Court.
(4) Except on the trial of any person for perjury within the meaning of the
Niue Act 1966 in respect of his sworn testimony, no statement made or answer
given by that or any other person in the course of the inquiry by or any proceedings
before the conciliator shall be admissible in evidence against any person in any
Court or at any inquiry or in any other proceedings, and no evidence in respect of
proceedings before the conciliator shall be given against any person.
(5) No person shall commit an offence against section 228A of the Niue
Act 1966 or any enactment, other than this Act, by reason of compliance with any
requirement of the conciliator under this section.
(6) Where any person is required by the conciliator to attend before him
for the purposes of this section, the person shall be entitled to the same fees,
allowances, and expenses as if he were a witness in civil proceedings in the Court
and the amounts payable shall be fixed by the Court and paid out of the Niue
Government Account.
(7) Every person appointed a conciliator under section 11 who, except
insofar as it is necessary for him to do so for the proper discharge of his functions
under this Act discloses to any person any information received by him or any
statement or admission made to him in the course of an investigation under section
11 or an endeavour to bring about a settlement under section 14 commits an offence
and is liable on conviction to a fine not exceeding 2 penalty units.
Race Relations Act 1972
1539
14 Procedure after investigation
(1) After investigating a case referred to him under section 11, the conciliator
shall use his best endeavours to secure a settlement acceptable to the parties and,
if he considers it appropriate in a case where he is of the opinion that a breach of
any of the provisions of sections 3 to 7 has occurred, a satisfactory assurance against
the repetition of the act or omission constituting the breach or the doing of further
acts or omissions of a similar kind by the person considered to have committed
the breach.
(2) As soon as reasonably practicable and in any event not later than 60
days after the matter has been referred to him or within such further time as the
Court may allow the conciliator shall furnish a report to the Court which shall
state whether or not the endeavour to secure a settlement between the parties or,
as the case may be, a settlement and an assurance of the kind referred to in
subsection (1), has been successful.
(3) A copy of every such report shall be made available to each party or to
his solicitor or counsel.
(4) (a) If the conciliator reports that he has secured a settlement, or a
settlement and such an assurance as aforesaid, the proceedings shall
lapse but without prejudice to the right of the aggrieved person to
commence fresh proceedings at any time in respect of the same
cause of action if there has been a breach of any term of the
settlement or of the assurance.
(b) In this event, the Court, if it is satisfied that such a breach has
occurred, shall proceed to hear the case and section 11 (1) shall have
no application.
(c) The Court shall otherwise dismiss the case.
15 Remedies
(1) If in any proceedings under section 10 the Court is satisfied on the
balance of probabilities that the defendant has committed a breach of any of the
provisions of sections 3 to 7, it may grant one or more of the following remedies –
(a) A declaration that the defendant has committed a breach of this
Act;
(b) An injunction restraining the defendant from continuing or
repeating the breach or from engaging in, or causing or permitting
others to engage in conduct of the same kind as that constituting
the breach, or conduct of any similar kind specified in the injunction;
(c) Damages under section 16;
(d) A declaration that any contract entered into or performed in
contravention of any of the provisions of sections 3 to 7 is an illegal
contract;
(e) Such other relief as the Court thinks just.
(2) It shall not be a defence to proceedings under this section that the breach
was unintentional or without negligence on the part of the defendant, but the
Court may take the conduct of the defendant into account in granting a remedy.
1540 Niue Laws 2006 Vol 3
16 Damages
(1) In any proceedings under section 10 the Court may award damages
against the defendant for a breach of any of the provisions of sections 3 to 7 in
respect of any one or more of the following –
(a) Pecuniary loss suffered and expenses reasonably incurred by the
aggrieved person for the purpose of the transaction or activity out
of which the breach arose;
(b) Loss of any benefit which the aggrieved person might reasonably
have been expected to obtain but for the breach;
(c) Humiliation, loss of dignity, and injury to the feelings of the
aggrieved person.
(2) Damages awarded under subsection (1)(c) shall not exceed 200 dollars.
17 Licences and registration
(1) Where any person is licensed or registered under any enactment to
carry on any occupation or activity or where any premises or vehicle are registered
or licensed for any purpose under any enactment, and where the person or other
authority authorised to renew, revoke, cancel, or review any such licence or
registration is satisfied –
(a) That in the carrying on of its occupation or activity; or
(b) That in the use of the premises or vehicle –
there has been a breach of any of the provisions of sections 3 to 7 the person or
authority, in addition to any other powers which that person or authority has, but
subject to subsection (2), may refuse to renew or may revoke or cancel any such
licence or registration, as the case may require, or may impose any other penalty
authorised by the enactment, whether by way of censure, fine, or otherwise.
(2) Any procedural requirements of the enactment, including any whereby
a complaint is a prerequisite to the exercise by the person or authority of its powers
under the enactment, shall be observed.
(3) In any case in which any of the powers conferred by subsection (1) are
exercised –
(a) The person or authority shall in giving its decision state that the
decision is being made under subsection (1); and
(b) Any person who would have been entitled to appeal against that
decision if it had been made on other grounds shall be entitled to
appeal against the decision made under subsection (1).
18 Access by the public to places, vehicles and facilities
(1) Every person commits an offence who –
(a) Refuses to allow any other person access to or use of any place or
vehicle which members of the public are entitled or allowed to enter
or use; or
(b) Refuses any other person the use of any facilities in that place or
vehicle which are available to members of the public; or
(c) Requires any other person to leave or to cease to use that place or
vehicle or those facilities –
by reason of the colour, race, or ethnic or national origins of that person or of any
relative of that person as defined in section 3 or of any associate of that person.
(2) Every person who commits an offence against this section is liable to a
fine not exceeding 1 penalty unit.
(3) In this section, “vehicle” includes a vessel, an aircraft, or a hovercraft.
Race Relations Act 1972
1541
19 Inciting racial disharmony
(1) Every person commits an offence and is liable to imprisonment for a
term not exceeding 3 months or to a fine not exceeding 2 penalty units who with
intent to incite hostility or ill-will against, or bring into contempt or ridicule, any
group of persons in Niue on the ground of the colour, race, or ethnic or national
origins of that group of persons –
(a) Publishes or distributes written matter which is threatening,
abusive, or insulting, or broadcasts by means of radio or television
words which are threatening, abusive, or insulting; or
(b) Uses in any public place or within the hearing of persons in any
such public place, or at any meeting to which the public are invited
or have access, words which are threatening, abusive, or insulting,
being matter or words likely to excite hostility, or ill-will against, or bring into
contempt or ridicule, any such group of persons in Niue on the ground of the
colour, race, or ethnic or national origins of that group of persons.
(2) For the purposes of this section –
“publishes” or “distributes” mean publishes or distributes to the public at
large or to any member or members of the public;
“written matter” includes any writing, sign, visible representation, or sound
recording.
20 No prosecution without consent
No prosecution for an offence under section 18 or 19 shall be instituted
without the consent of Cabinet.
21 Condition in restraint of marriage
(1) A condition, whether oral or contained in a deed, will, or other
instrument, which restrains or has the effect of restraining marriage shall be void
if the person or class of person whom the person subject to the condition may or
may not marry is identified or defined, expressly or by implication, by reference
to the colour, race, or ethnic or national origins of the person or class of person.
(2) Nothing in this section shall affect the construction of any deed, will,
or other instrument executed before the commencement of this Act.
(3) For the purposes of this section, the will of any testator who dies after
31 December 1973 shall (notwithstanding the actual date of the execution of it), be
deemed to have been executed after the commencement of this Act.
22 Offences
Every person commits an offence against the Act and is liable to a fine not
exceeding 1 penalty unit who –
(a) Without lawful justification or excuse, wilfully obstructs, hinders,
or resists any person appointed as conciliator under section 11 in
the exercise of his powers under this Act;
(b) Without lawful justification or excuse, refuses or wilfully fails to
comply with any lawful requirement of any person appointed as
conciliator under section 11;
(c) Wilfully makes any false statement to or misleads or attempts to
mislead any person appointed as conciliator under section 11 in
the exercise of his powers under this Act.
1542 Niue Laws 2006 Vol 3
23 Other enactments not affected
Except as expressly provided in this Act nothing in this Act shall limit or
affect any other enactment.
24 Charitable instruments
(1) Nothing in this Act shall apply to any provision contained in an existing
or future charitable instrument which confers benefits, or enables benefits to be
conferred, on persons of a particular colour, race, or ethnic or national origin, or to
any act done in order to comply with any such provision.
(2) In this section “instrument” means an instrument the purposes of which
are exclusively charitable.
25 Savings
(1) Nothing in this Act shall affect the right to bring any proceedings, either
civil or criminal, which might have been brought if this Act had not been passed,
but, in assessing any damages to be awarded to or on behalf of any person under
this Act or otherwise, a court shall take account of any damages already awarded
to or on behalf of that person in respect of the same cause of action.
(2) No proceedings, civil or criminal, shall lie against any person, except
as provided by this Act, in respect of any act or omission, which is unlawful by
virtue only of sections 3 to 7.
(3) Nothing in this Act shall affect any enactment or law, or any
administrative practice, which distinguishes between New Zealand citizens and
other persons, or between British subjects or Commonwealth citizens (including
citizens of the Republic of Ireland) and aliens, or between Niueans and other
persons.
(4) For the purposes of subsection (3) “enactment” includes any provision
of any notice, consent, approval, or direction which is given by any person pursuant
to a power conferred by any enactment.
1543
|
REPRINT OF STATUTES ACT 1991 | |||
|
1991/154 24 July 1991 | |||
|
1 2 3 |
Short title Interpretation Powers and functions of Cabinet |
4 5 6 |
Carrying Act into operation Copy of statute to be evidence Judicial notice to be taken of reprint |
For compiling reprints or a composite edition of the enactments in force in Niue
1 Short title
This is the Reprint of Statutes Act 1991.
2 Interpretation
For the purposes of this Act –
“statute” means any Act and includes any regulations, rules, orders and
notices made under the authority of an Act.
3 Powers and functions of Cabinet
(1) Cabinet shall have the powers and functions set out in subsection (2),
in the reprint of any statute.
(2) Cabinet may –
(a) Prepare and arrange for the publication of a composite reprint
edition of the Constitution and statutes in such form as Cabinet
shall consider desirable;
(b) Prepare a separate reprint of the Constitution or any statute;
(c) Omit formal, enacting or introductory words;
(d) Unless inconsistent with the context, revise and correct obsolete
references to statutes and any office, department, board or any other
body whatsoever;
(e) Omit all repealed or revoked provisions and may renumber
remaining provisions accordingly;
(f) Make such alterations as may be necessary to conform to current
drafting style and practice, and to reconcile any contradictions,
supply any omissions, and amend any imperfections in the form of
the existing statutes;
(g) Consolidate with all necessary consequential changes, statutes on
the same subject.
4 Carrying Act into operation
Statutes reprinted as aforesaid may be printed and compiled or bound in
such manner as the Cabinet may direct.
1544 Niue Laws 2006 Vol 3
5 Copy of statute printed to be evidence
Every copy of any statute printed under the authority of this Act shall be
evidence of such statute and of its contents, and every copy of it purporting to be
printed as aforesaid shall be deemed to be so printed unless the contrary is proved.
6 Judicial notice to be taken of reprint
Judicial notice of any statute reprinted pursuant to this Act shall be taken
by all courts and persons acting judicially.
1545
ROYAL TITLES ACT 1974
1974/1 (NZ) – 6 February 1974
|
1 |
Short title |
|
2 |
Royal style and titles |
|
3-4 |
[Spent] |
To define Her Majesty’s royal style and titles in relation to New Zealand
1 Short title
This is the Royal Titles Act 1974.
2 Royal style and titles
The royal style and titles of Her Majesty, for use in relation to Niue, shall be
– Elizabeth the Second, by the Grace of God Queen of New Zealand and Her
other Realms and Territories, Head of the Commonwealth and Defender of the
Faith.…
3-4 [Spent]
1546 Niue Laws 2006 Vol 3
1547
SALE OF GOODS ACT 1908
1908/68 (NZ) – 4 August 1908
1 Short title
2 Interpretation
PART 1
25 Sale under voidable title
26 Revesting of property in stolen goods on
conviction of offender
27 Seller or buyer in possession after sale
FORMATION OF THE CONTRACT
Contract of Sale
3 Sale and agreement to sell
4 Capacity to buy and sell
Formalities of the Contract
5 Contact of sale, how made
6 [Repealed]
Subject-Matter of Contract
7 Existing or future goods
8 Goods which have perished
9 Goods perishing before sale but after
agreement to sell
The Price
10 Ascertainment of price
11 Agreement to sell at valuation
Conditions and Warranties
12 Stipulation as to time
13 When condition to be treated as warranty
14 Implied undertaking as to title
15 Sale by description
16 Implied conditions as to quality or fitness
Sale by Sample
17 Sale by sample
PART 2
EFFECTS OF THE CONTRACT
Transfer of Property as Between Seller and Buyer
18 Goods must be ascertained
19 Property passes when intended to pass
20 Rules for ascertaining intention
21 Reservation of right of disposal
22 Risk prima facie passes with property
Transfer of Title
23 Sale by person not the owner
24 Market overt
28 Effect of writs of execution
PART 3
PERFORMANCE OF THE CONTRACT
29 Duties of seller and buyer
30 Payment and delivery are concurrent
conditions
31 Rules as to delivery
32 Delivery of wrong quantity
33 Instalment deliveries
34 Delivery to carrier
35 Risk where goods delivered at distant place
36 Buyer ’s right of examining goods
37 Acceptance
38 Buyer not bound to return rejected goods
39 Liability of buyer for neglecting or refusing
delivery
PART 4
RIGHTS OF UNPAID SELLER AGAINST THE GOODS
40 “Unpaid seller” defined
41 Unpaid seller ’s rights
Unpaid Seller’s Lien
42 Unpaid seller ’s lien
43 Part delivery
44 Termination of lien
Stoppage in Transit
45 Rights of stoppage in transit
46 Duration of transit
47 How stoppage in transit effected
Resale by Buyer or Seller
48 Effect of subsale or pledge by buyer
49 Sale not generally rescinded by lien or
stoppage in transit
1548 Niue Laws 2006 Vol 3
PART 5 PART 6
ACTIONS FOR BREACH OF THE CONTRACT SUPPLEMENTARY
Remedies of the Seller
50 Action for price
51 Damages for non-acceptance
Remedies of the Buyer
52 Damages for non-delivery
53 Specific performance
54 Remedy for breach of warranty
55 Interest and special damages, or recovery
of money paid
56 Exclusion of implied terms and conditions
57 Reasonable time a question of fact
58 Rights and duties under Act enforceable by
action
59 Auction sales
60 Savings
SCHEDULE
To consolidate certain enactments relating to the sale of goods
1 Short title
This is the Sale of Goods Act 1908.
2 Interpretation
(1) In this Act –
“action” includes counterclaim and set-off;
“buyer” means a person who buys or agrees to buy goods;
“contract of sale” includes an agreement to sell as well as a sale;
“delivery” means voluntary transfer of possession from one person to
another;
“document of title to goods” includes any bill of lading, dock warrant,
warehouse keeper ’s certificate, and warrant or order for the delivery
of goods, and any other document used in the ordinary course of
business as proof of the possession or control of goods, or authorising
or purporting to authorise, either by endorsement or by delivery, the
possessor of the document to transfer or receive goods thereby
represented;
“fault” means wrongful act or default;
“future goods” means goods to be manufactured or acquired by the seller
after the making of the contract of sale;
“goods” includes all chattels person other than money or things in action.
The term includes emblements, growing crops, and things attached to
or forming part of the land which are agreed to be severed before sale
or under the contract of sale;
“plaintiff” includes defendant counterclaiming;
“property” means the general property in goods, and not merely a special
property;
“quality of goods” includes their state or condition;
“sale” includes a bargain and sale, as well as a sale and delivery;
“seller” means a person who sells or agrees to sell goods;
“specific goods” means goods identified and agreed on at the time a contract
of sale is made;
“warranty” means an agreement with reference to goods which are the
subject of a contract of sale, but collateral to the main purpose of such
contract, the breach of which gives rise to a claim for damages, but not
to a right to reject the goods and treat the contract as repudiated;
Sale of Goods Act 1908
1549
“writ of execution” means any writ of sale, warrant of distress, or other writ or warrant of execution under which chattels of any kind may be seized or taken to satisfy process issued out of any Court.
(2) A thing is deemed to be done “in good faith” within the meaning of this Act when it is in fact done honestly, whether it is done negligently or not.
(3) A person is deemed to be insolvent, within the meaning of this Act,
who either has ceased to pay his debts in the ordinary course of business, or cannot
pay his debts as they become due, whether he has committed an act of bankruptcy
or not.
(4) Goods are in a “deliverable state” within the meaning of this Act when they are in such a state that the buyer would under the contract be bound to take delivery of them.
PART 1
FORMATION OF THE CONTRACT
Contract of Sale
3 Sale and agreement to sell
(1) A contract of sale of goods is a contract whereby the seller transfers or
agrees to transfer the property in goods to the buyer for a money consideration,
called “the price”.
(2) There may be a contract of sale between one part owner and another.
(3) A contract of sale may be absolute or conditional.
(4) Where under a contract of sale the property in the goods is transferred
from the seller to the buyer the contract is called “a sale”; but where the transfer of
the property in the goods is to take place at a future time, or subject to some
condition thereafter to be fulfilled, the contract is called “an agreement to sell”.
(5) An agreement to sell becomes a sale when the time elapses or the
conditions are fulfilled subject to which the property in the goods is to be
transferred.
4 Capacity to buy and sell
(1) (a) Capacity to buy and sell is regulated by the general law concerning
capacity to contract, and to transfer and acquire property.
(b) Where necessaries are sold and delivered to a person who by reason
of mental incapacity or drunkenness is incompetent to contract, he
must pay a reasonable price for them.
(2) “Necessaries” in this section means goods suitable to the condition in
life of the person, and to his actual requirements at the time of the sale and delivery.
Formalities of the Contract
5 Contract of sale, how made
(1) Subject to this and any other Act, a contract of sale may be made in
writing (either with or without seal), or by word of mouth, or partly in writing
and partly by word of mouth, or may be implied from the conduct of the parties.
(2) Nothing in this section shall affect the law relating to corporations.
6 [Repealed]
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Subject-Matter of Contract
7 Existing or future goods
(1) The goods which form the subject of a contract of sale may be either
existing goods, owned or possessed by the seller, or goods to be manufactured or
acquired by the seller after the making of the contract of sale, in this Act called
“future goods”.
(2) There may be a contract for the sale of goods, the acquisition of which
by the seller depends upon a contingency which may or may not happen.
(3) Where by a contract of sale the seller purports to effect a present sale of
future goods, the contract operates as an agreement to sell the goods.
8 Goods which have perished
Where there is a contract for the sale of specific goods, and the goods without
the knowledge of the seller have perished at the time when the contract is made,
the contract is void.
9 Goods perishing before sale but after agreement to sell
Where there is an agreement to sell specific goods, and subsequently the
goods, without any fault on the part of the seller or buyer, perish before the risk
passes to the buyer, the agreement is thereby avoided.
10 Ascertainment of price
The Price
(1) The price in a contract of sale may be fixed by the contract, or may be left to be fixed in manner thereby agreed, or may be determined by the course of dealing between the parties.
(2) Where the price is not determined under subsection (1) the buyer must
pay a reasonable price.
(3) What is a reasonable price is a question of fact, dependent on the
circumstances of each particular case.
11 Agreement to sell at valuation
(1) (a) Where there is an agreement to sell goods on the terms that the
price is to be fixed by the valuation of a third party, and such third
party cannot or does not make such valuation, the agreement is
avoided.
(b) If the goods or any part have been delivered to and appropriated
by the buyer he must pay a reasonable price for them.
(2) Where such third party is prevented from making the valuation by the
fault of the seller or buyer, the party not in fault may maintain an action for damages
against the party in fault.
Conditions and Warranties
12 Stipulations as to time
(1) Unless a different intention appears from the terms of the contract,
stipulations as to time of payment are not deemed to be of the essence of a contract
of sale.
(2) Whether any other stipulation as to time is of the essence of the contract
or not depends on the terms of the contract.
(3) In a contract of sale “month” means prima facie calendar month.
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13 When condition to be treated as warranty
(1) Where a contract of sale is subject to any condition to be fulfilled by the
seller, the buyer may waive the condition, or may elect to treat the breach of such
condition as a breach of warranty, and not as a ground for treating the contract as
repudiated.
(2) Whether a stipulation in a contract of sale is a condition, the breach of
which may give rise to a right to treat the contract as repudiated, or a warranty,
the breach of which may give rise to a claim for damages but not to a right to reject
the goods and treat the contract as repudiated, depends in each case on the
construction of the contract. A stipulation may be a condition, though called a
“warranty” in the contract.
(3) Where a contract of sale is not severable, and the buyer has accepted
the goods or part of it, or where the contract is for specific goods the property in
which has passed to the buyer, the breach of any condition to be fulfilled by the
seller can only be treated as a breach of warranty, and not as a ground for rejecting
the goods and treating the contract as repudiated, unless there is a term of the
contract, express or implied, to that effect.
(4) Nothing in this section shall affect the case of any condition or warranty
fulfilment of which is excused by law by reason of impossibility or otherwise.
14 Implied undertaking as to title
In a contract of sale, unless the circumstances of the contract are such as to
show a different intention, there is –
(a) An implied condition on the part of the seller that in the case of a
sale he has a right to sell the goods, and that in the case of an
agreement to sell he will have a right to sell the goods at the time
when the property is to pass;
(b) An implied warranty that the buyer shall have and enjoy quiet
possession of the goods;
(c) An implied warranty that the goods are free from any charge or
encumbrance in favour of any third party, not declared or known
to the buyer before or at the time when the contract is made.
15 Sale by description
Where there is a contract for the sale of goods by description there is an
implied condition that the goods shall correspond with the description; and if the
sale is by sample, as well as by description, it is not sufficient that the bulk of the
goods corresponds with the sample if the goods do not also correspond with the
description.
16 Implied conditions as to quality or fitness
Subject to this and any other Act, there is no implied warranty or condition
as to the quality or fitness for any particular purpose of goods supplied under a
contract of sale, except as follows –
(a) Where the buyer, expressly or by implication, makes known to the
seller the particular purpose for which the goods are required, so
as to show that the buyer relies on the seller ’s skill or judgement,
and the goods are of a description which it is in the course of the
seller ’s business to supply (whether he is the manufacturer or not),
there is an implied condition that the goods shall be reasonably fit
for such purpose:
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Provided that in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose;
(b) Where goods are brought by description from a seller who deals in goods of that description (whether he is the manufacturer or not), there is an implied condition that the goods shall be of merchantable quality:
Provided that if the buyer has examined the goods, there shall be no implied condition as regards defects which such examination ought to have revealed;
(c) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade;
(d) An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith.
17 Sale by sample
Sale by Sample
(1) A contract of sale is a contract for sale by sample where there is a term in the contract, express or implied, to that effect.
(2) In the case of a contract for sale by sample, there is an implied condition– (a) That the bulk shall correspond with the sample in quality;
(b) That the buyer shall have a reasonable opportunity of comparing the bulk with the sample; and
(c) That the goods shall be free from any defect, rendering them
unmerchantable, which would not be apparent on reasonable
examination of the sample.
PART 2
EFFECTS OF THE CONTRACT
Transfer of Property as Between Seller and Buyer
18 Goods must be ascertained
Where there is a contract for the sale of unascertained goods, no property
in the goods is transferred to the buyer unless and until the goods are ascertained.
19 Property passes when intended to pass
(1) Where there is a contract for the sale of specific or ascertained goods,
the property in them is transferred to the buyer at such time as the parties to the
contract intend it to be transferred.
(2) For the purpose of ascertaining the intention of the parties, regard shall
be had to the terms of the contract, the conduct of the parties, and the circumstances
of the case.
20 Rules for ascertaining intention
Unless a different intention appears, the following are rules for ascertaining
the intention of the parties as to the time at which the property in the goods is to
pass to the buyer:
Rule 1. Where there is an unconditional contract for the sale of specific
goods, in a deliverable state, the property in the goods passes to the buyer when
the contract is made, and it is immaterial whether the time of payment or the time
of delivery, or both, is postponed.
Rule 2. Where there is a contract for the sale of specific goods, and the
seller is bound to do something to the goods for the purpose of putting them into
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1553
a deliverable state, the property does not pass until such thing is done, and the buyer has notice of it.
Rule 3. Where there is a contract for the sale of specific goods in a deliverable state, but the seller is bound to weigh, measure, test, or do some other act or thing with reference to the goods for the purpose of ascertaining the price, the property does not pass until such act or thing is done, and the buyer has notice of it.
Rule 4. Where goods are delivered to the buyer on approval, or “on sale or return” or other similar terms, the property in it passes to the buyer –
(a) When he signifies his approval or acceptance to the seller, or does
any other act adopting the transaction;
(b) If he does not signify his approval or acceptance to the seller, but
retains the goods without giving notice of rejection then, if a time
has been fixed for the return of the goods, on the expiration of such
time, and if no time has been fixed, on the expiration of a reasonable
time. What is a reasonable time is a question of fact.
Rule 5. (1) Where there is a contract for the sale of unascertained or future
goods by description, and goods of that description and in a deliverable state are
unconditionally appropriated to the contract, either by the seller with the assent
of the buyer or by the buyer with the assent of the seller, the property in the goods
thereupon passes to the buyer. Such assent may be expressed or implied, and may
be given either before or after the appropriation is made.
(2) Where, in pursuance of the contract, the seller delivers the goods to the
buyer, or to a carrier or other bailee (whether named by the buyer or not) for the
purpose of transmission to the buyer, and does not reserve the right of disposal,
he is deemed to have unconditionally appropriated the goods to the contract.
21 Reservation of right of disposal
(1) Where there is a contract for the sale of specific goods, or where goods
are subsequently appropriated to the contract, the seller may, by the terms of the
contract or appropriation, reserve the right of disposal of the goods until certain
conditions are fulfilled.
(2) In such case, notwithstanding the delivery of the goods to the buyer, or
to a carrier or other bailee for the purpose of transmission to the buyer, the property
in the goods does not pass to the buyer until the conditions imposed by the seller
are fulfilled.
(3) Where goods are shipped, and by the bill of lading the goods are
deliverable to the order of the seller or his agent, the seller is prima facie deemed
to reserve the right of disposal.
(4) Where the seller of goods draws on the buyer for the price, and transmits
the bill of exchange and bill of lading to the buyer together to secure acceptance or
payment of the bill of exchange, the buyer is bound to return the bill of lading if
he does not honour the bill of exchange, and if he wrongfully retains the bill of
lading the property in the goods does not pass to him.
22 Risk prima facie passes with property
(1) (a) Unless otherwise agreed, the goods remain at the seller ’s risk until
the property in them is transferred to the buyer; but when the
property in them is transferred to the buyer the goods are at the
buyer ’s risk, whether delivery has been made or not.
(b) Where delivery has been delayed through fault of either buyer or
seller, the goods are at the risk of the party if fault as regards any
loss which might not have occurred but for such fault.
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(2) Nothing in this section shall affect the duties or liabilities of either seller or buyer as a bailee of the goods of the other party.
Transfer of Title
23 Sale by person not the owner
(1) Subject to this Act, where goods are sold by a person who is not the
owner of them, and who does not sell them under the authority or with the consent
of the owner, the buyer acquires no better title to the goods than the seller had,
unless the owner of the goods is by his conduct precluded from denying the seller ’s
authority to sell.
(2) Nothing in this Act shall affect –
(a) The Mercantile Law Act 1908, or any other enactment enabling the
apparent owner of goods to dispose of them as if he were the true
owner of them;
(b) The validity of any contract of sale under any special common law
or statutory power of sale, or under the order of a Court of
competent jurisdiction.
24 Market overt
The law relating to market overt shall not apply in Niue.
25 Sale under voidable title
Where the seller of goods has a voidable title to them, but his title has not
been avoided at the time of the sale, the buyer acquires a good title to the goods,
provided he buys them in good faith and without notice of the seller ’s defect of
title.
26 Revesting of property in stolen goods on conviction of offender
(1) Where goods have been stolen and the offender is prosecuted to
conviction, the property in the goods so stolen revests in the person who was the
owner of the goods, or his personal representative, notwithstanding any
intermediate dealing with them, whether by sale in market overt or otherwise.
(2) Notwithstanding any enactment to the contrary, where goods have been
obtained by fraud or other wrongful means not amounting to theft, the property
in such goods shall not revest in the person who was the owner of the goods, or
his personal representative, by reason only of the conviction of the offender.
27 Seller or buyer in possession after sale
(1) Where a person, having sold goods continues or is in possession of the
goods, or of the documents of title to the goods, the delivery or transfer by that
person, or by a mercantile agent acting for him, of the goods or documents of title
under any sale, pledge, or other disposition of it, or under any agreement for sale,
pledge, or other disposition of it, to any person receiving the same in good faith
and without notice of the previous sale, shall have the same effect as if the person
making the delivery or transfer were expressly authorised by the owner of the
goods to make the same.
(2) Where a person, having brought or agreed to buy goods, obtains, with
the consent of the seller, possession of the goods or the documents of title to the
goods, the delivery or transfer by that person, or by a mercantile agent acting for
him, of the goods or documents of title, under any sale, pledge, or other disposition
of it, or under any agreement for sale, pledge, or other disposition of it, to any
person receiving the same in good faith and without notice of any lien or other
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right of the original seller in respect of the goods, shall have the same effect as if the person making the delivery or transfer were a mercantile agent in possession of the goods or documents of title with the consent of the owner:
Provided that if the lien or other right of the original seller is expressed in an instrument duly registered under the Chattels Transfer Act 1924, and if the person selling, pledging, or disposing of the goods or agreeing so to do is the mortgagor or bailee named in such instrument, then the person receiving the goods shall be deemed to have had notice of the contents of such instrument.
(3) In this section “mercantile agent” has the same meaning as in Part 1 of
the Mercantile Law Act 1908.
28 Effect of writs of execution
(1) (a) A writ of execution against goods binds the property in the goods
of the execution debtor as from the time when the writ is delivered
to the Sheriff to be executed; and, for the better manifestation of
such time, the Sheriff shall, without fee, upon the receipt of any
such writ, endorse on the back thereof the hour, day, month and
year when he received the same.
(b) No such writ shall prejudice the title to such goods acquired by any
person in good faith and for valuable consideration, unless such
person had at the time when he acquired his title notice that such
writ or any other writ under which the goods of the execution debtor
might be seized or attached had been delivered to and remained
unexecuted in the hands of the Sheriff.
(2) In this section “Sheriff” includes any officer charged with the
enforcement of a writ of execution.
PART 3
PERFORMANCE OF THE CONTRACT
29 Duties of seller and buyer
It is the duty of the seller to deliver the goods, and of the buyer to accept
and pay for them under the terms of the contract of sale.
30 Payment and delivery are concurrent conditions
Unless otherwise agreed, delivery of the goods and payment of the price
are concurrent conditions – that is to say, the seller must be ready and willing to
give possession of the goods to the buyer in exchange for the price, and the buyer
must be ready and willing to pay the price in exchange for possession of the goods.
31 Rules as to delivery
(1) Whether it is for the buyer to take possession of the goods or for the
seller to send them to the buyer is a question depending in each case on the contract,
express or implied, between the parties.
(2) (a) Apart from any such contract, express or implied, the place of
delivery is the seller ’s place of business, if he has one, and if not,
his residence.
(b) If the contract is for the sale of specific goods, which to the
knowledge of the parties when the contract is made are in some
other place, then that place is the place of delivery.
(3) Where under the contract of sale the seller is bound to send the goods
to the buyer, but no time for sending them is fixed, the seller is bound to send
them within a reasonable time.
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(4) (a) Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller to buyer unless and until such third person acknowledges to the buyer that he holds the goods on his behalf.
(b) Nothing in this section shall affect the operation of the issue or transfer of any document of title to goods.
(5) (a) Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour;
(b) What is a reasonable hour is a question of fact.
(6) Unless otherwise agreed, the expenses of and incidental to putting the
goods into a delivery state must be borne by the seller.
32 Delivery of wrong quantity
(1) Where the seller delivers to the buyer a quantity of goods less than he
contracted to sell, the buyer may reject them, but if the buyer accepts the goods so
delivered he must pay for them at the contract rate.
(2) Where the seller delivers to the buyer a quantity of goods larger than
he contracted to sell, the buyer may accept the goods included in the contract and
reject the rest, or he may reject the whole. If the buyer accepts the whole of the
goods so delivered he must pay for them at the contract rate.
(3) Where the seller delivers to the buyer the goods he contracted to sell
mixed with goods of a different description not included in the contract, the buyer
may accept the goods which are under the contract and reject the rest, or he may
reject the whole.
(4) The provisions of this section are subject to any usage of trade, special
agreement, or course of dealing between the parties.
33 Instalment deliveries
(1) Unless otherwise agreed, the buyer of goods is not bound to accept
delivery of it by instalments.
(2) Where there is a contract for the sale of goods to be delivered by stated
instalments, which are to be separately paid for, and the seller makes defective
deliveries in respect of one or more instalments, or the buyer neglects or refuses to
take delivery of or pay for one or more instalments, it is a question in each case
depending on the terms of the contract and the circumstances of the case, whether
the breach of contract is a repudiation of the whole contract or whether it is a
severable breach, giving rise to a claim for compensation but not to a right to treat
the whole contract as repudiated.
34 Delivery to carrier
(1) Where, under a contract of sale, the seller is authorised or required to
send the goods to the buyer, delivery of the goods to a carrier, whether named by
the buyer or not, for the purpose of transmission to the buyer is prima facie deemed
to be a delivery of the goods to the buyer.
(2) (a) Unless otherwise authorised by the buyer, the seller must make
such contract with the carrier on behalf of the buyer as may be
reasonable, having regard to the nature of the goods and the other
circumstances of the case.
(b) If the seller omits so to do, and the goods are lost or damaged in
course of transit, the buyer may decline to treat the delivery to the
carrier as a delivery to himself, or may hold the seller responsible
in damages.
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(3) Unless otherwise agreed, where goods are sent by the seller to the buyer by a route involving sea transit, under circumstances in which it is usual to insure, the seller must give such notice to the buyer as may enable him to insure them during their sea transit, and, if the seller fails to do so, the goods shall be deemed to be at his risk during such sea transit.
35 Risk where goods delivered at distant place
Where the seller of goods agrees to deliver them at his own risk at a place
other than that where they are when sold, the buyer must, nevertheless, unless
otherwise agreed, take any risk of deterioration in the goods necessarily incident
to the course of transit.
36 Buyer’s right of examining goods
(1) Where goods are delivered to the buyer, which he has not previously
examined, he is not deemed to have accepted them unless and until he has had a
reasonable opportunity of examining them for the purpose of ascertaining whether
they are in conformity with the contract.
(2) Unless otherwise agreed, when the seller tenders delivery of goods to
the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of
examining the goods for the purpose of ascertaining whether they are in conformity
with the contract.
37 Acceptance
The buyer is deemed to have accepted the goods when he intimates to the
seller that he has accepted them, or when the goods have been delivered to him,
and he does any act in relation to them which is inconsistent with the ownership
of the seller, or when after the lapse of a reasonable time he retains the goods,
without intimating to the seller that he has rejected them.
38 Buyer not bound to return rejected goods
Unless otherwise agreed, where goods are delivered to the buyer, and he
refuses to accept them, having the right so to do, he is not bound to return them to
the seller, but it is sufficient if he intimates to the seller that he refuses to accept
them.
39 Liability of buyer for neglecting or refusing delivery
(1) Where the seller is ready and willing to deliver the goods, and requests
the buyer to take delivery, and the buyer does not within a reasonable time after
such request take delivery of the goods, he is liable to the seller for any loss
occasioned by his neglect or refusal to take delivery, and also for a reasonable
charge for the care and custody of the goods.
(2) Nothing in this section shall affect the rights of the seller where the
neglect or refusal of the buyer to take delivery amounts to a repudiation of the
contract.
PART 4
RIGHTS OF UNPAID SELLER AGAINST THE GOODS
40 “Unpaid seller” defined
(1) The seller of goods is deemed to be an “unpaid seller”, within the
meaning of this Act –
(a) When the whole of the price has not been paid or tendered;
(b) When a bill of exchange or other negotiable instrument has been
received as conditional payment, and the condition on which it was
received has not been fulfilled by reason of the dishonour of the
instrument or otherwise.
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(2) In this Part, “seller” includes any person who is in the position of a seller, as, for instance, an agent of the seller to whom the bill of lading has been endorsed, or a consignor or agent who has himself paid or is directly responsible for the price.
41 Unpaid seller’s rights
(1) Subject to this Act, and of any statute in that behalf, notwithstanding
that the property in the goods may have passed to the buyer, the unpaid seller of
goods, as such, has, by implication of law –
(a) A lien on the goods, or right to retain them for the price, while he is
in possession of them;
(b) In case of the insolvency of the buyer, a right of stopping the goods
in transit after he has parted with the possession of them;
(c) A right of resale, as limited by this Act.
(2) Where the property in goods has not passed to the buyer, the unpaid
seller has, in addition to his other remedies, right of withholding delivery similar
to and co-extensive with his rights of lien and stoppage in transit where the
property has passed to the buyer.
42 Unpaid seller’s lien
Unpaid Seller’s Lien
(1) Subject to this Act, the unpaid seller of goods who is in possession of them is entitled to retain possession of them until payment or tender of the price in the following cases, namely –
(a) Where the goods have been sold without any stipulation as to credit; (b) Where the goods have been sold on credit, but the term of credit
has expired;
(c) Where the buyer becomes insolvent.
(2) The seller may exercise his right of lien, notwithstanding that he is in
possession of the goods as agent or bailee for the buyer.
43 Part delivery
Where an unpaid seller has made part delivery of the goods, he may exercise
his right of lien or retention on the remainder, unless such part delivery has been
made under such circumstances as to show an agreement to waive the lien or
right of retention.
44 Termination of lien
(1) The unpaid seller of goods loses his lien or right of retention thereon –
(a) When he delivers the goods to a carrier or other bailee for the
purpose of transmission to the buyer without reserving the right of
disposal of the goods;
(b) When the buyer or his agent lawfully obtains possession of the
goods;
(c) By waiver of it.
(2) The unpaid seller of goods, having a lien or right of retention on it,
does not lose his lien or right of retention by reason only that he has obtained
judgment for the price of the goods.
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Stoppage in Transit
45 Right of stoppage in transit
Subject to this Act, when the buyer of goods becomes insolvent, the unpaid
seller who has parted with the possession of the goods has the right of stopping
them in transit – that is to say, he may resume possession of the goods as long as
they are in course of transit, and may retain them until payment or tender of the
price.
46 Duration of transit
(1) Goods are deemed to be in course of transit from the time when they
are delivered to a carrier by land or water, or other bailee for the purpose of
transmission to the buyer, until the buyer, or his agent in that behalf, takes delivery
of them from such carrier or other bailee.
(2) If the buyer or his agent in that behalf obtains delivery of the goods
before their arrival at the appointed destination, the transit is at an end.
(3) If, after the arrival of the goods at the appointed destination, the carrier
or other bailee acknowledges to the buyer or his agent that he holds the goods on
his behalf, and continues in possession of them as bailee for the buyer, or his
agent, the transit is at an end, and it is immaterial that a further destination for the
goods may have been indicated by the buyer.
(4) If the goods are rejected by the buyer, and the carrier or other bailee
continues in possession of them, the transit is not deemed to be at an end, even if
the seller has refused to receive them back.
(5) When goods are delivered to a ship chartered by the buyer, it is a
question, depending on the circumstances of the particular case, whether they are
in the possession of the master as a carrier or as agent to the buyer.
(6) Where the carrier or other bailee wrongfully refuses to deliver the goods
to the buyer, or his agent in that behalf, the transit is deemed to be at an end.
(7) Where part delivery of the goods has been made to the buyer, or his
agent in that behalf, the remainder of the goods may be stopped in transit, unless
such part delivery has been made under such circumstances as to show an
agreement to give up possession of the whole of the goods.
47 How stoppage in transit effected
(1) (a) The unpaid seller may exercise his right of stoppage in transit either
by taking actual possession of the goods, or by giving notice of his
claim to the carrier or other bailee in whose possession the goods
are.
(b) Such notice may be given either to the person in actual possession
of the goods or to his principal. In the latter case the notice, to be
effectual, must be given at such time and under such circumstances
that the principal, by the exercise of reasonable diligence, may
communicate it to his servant or agent in time to prevent a delivery
to the buyer.
(2) (a) When notice of stoppage in transit is given by the seller to the carrier,
or other bailee in possession of the goods, he must redeliver the
goods to or according to the directions of the seller.
(b) The expenses of such redelivery must be borne by the seller.
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Resale by Buyer or Seller
48 Effect of subsale or pledge by buyer
(1) Subject to this Act, the unpaid seller ’s right of lien or retention or
stoppage in transit is not affected by any sale or other disposition of the goods
which the buyer may have made, unless the seller has assented.
(2) Where a document of title to goods has been lawfully transferred to
any person as buyer or owner of the goods, and that person transfers the document
to a person who takes the document in good faith and for valuable consideration,
then, if such last-mentioned transfer was by way of sale, the unpaid seller ’s right
of lien or retention or stoppage in transit is defeated, and if such last-mentioned
transfer was by way of pledge or other disposition for value, the unpaid seller ’s
right of lien or retention or stoppage in transit can only be exercised subject to the
rights of the transferee.
49 Sale not generally rescinded by lien or stoppage in transit
(1) Subject to this section, a contract of sale is not rescinded by the mere
exercise by an unpaid seller of his right of lien or retention or stoppage in transit.
(2) Where an unpaid seller who has exercised his right of lien or retention
or stoppage in transit resells the goods, the buyer acquires a good title thereto as
against the original buyer.
(3) Where the goods are of a perishable nature, or where the unpaid seller
gives notice to the buyer of his intention to resell, and the buyer does not within a
reasonable time pay or tender the price, the unpaid seller may resell the goods
and recover from the original buyer damages for any loss occasioned by his breach
of contract.
(4) Where the seller expressly reserves a right of resale in case the buyer
should make default, and on the buyer making default resells the goods, the
original contract of sale is thereby rescinded, but without prejudice to any claim
the seller may have for damages.
PART 5
ACTIONS FOR BREACH OF THE CONTRACT
Remedies of the Seller
50 Action for price
(1) Where, under a contract of sale, the property in the goods has passed
to the buyer, and the buyer wrongfully neglects or refuses to pay for the goods
under the terms of the contract, the seller may maintain an action against him for
the price of the goods.
(2) Where, under a contract of sale, the price is payable on a day certain
irrespective of delivery, and the buyer wrongfully neglects or refuses to pay such
price, the seller may maintain an action for the price, although the property in the
goods has not passed, and the goods have not been appropriated to the contract.
51 Damages for non-acceptance
(1) Where the buyer wrongfully neglects or refuses to accept and pay for
the goods, the seller may maintain an action against him for damages for non
acceptance.
(2) The measure of damages is the estimated loss directly and naturally
resulting, in the ordinary course of events, from the buyer ’s breach of contract.
(3) Where there is an available market for the goods in question, the
measure of damages is prima facie to be ascertained by the difference between the
contract prize and the market or current price at the time or times when the goods
ought to have been accepted, or if no time was fixed for acceptance, then t the
time of the refusal to accept.
Sale of Goods Act 1908
1561
Remedies of the Buyer
52 Damages for non-delivery
(1) Where the seller wrongfully neglects or refuses to deliver the goods to
the buyer, the buyer may maintain an action against the seller for damages for
non-delivery.
(2) The measure of damages is the estimated loss directly and naturally
resulting, in the ordinary course of events, from the seller ’s breach of contract.
(3) Where there is an available market for the goods in question the measure
of damages is prima facie to be ascertained by the difference between the contract
prize and the market or current price of the goods at the time or times when they
ought to have been delivered, or if no time was fixed, then at the time of the
refusal to deliver.
53 Specific performance
(1) In an action for breach of contract to deliver specific or ascertained
goods the Court may on the application of the plaintiff, by its judgment direct
that the contract shall be performed specifically, without giving the defendant the
option of retaining the goods on payment of damages.
(2) The judgement may be unconditional, or upon such terms and
conditions as to damages, payment of the price, and otherwise, as the Court deems
just; and the application by the plaintiff may be made at any time before judgment.
54 Remedy for breach of warranty
(1) Where there is a breach of warranty by the seller, or where the buyer
elects or is compelled to treat any breach of a condition on the part of the seller as
a breach of warranty, the buyer is not by reason only of such breach of warranty
entitled to reject the goods; but he may –
(a) Set up against the seller the breach of warranty in diminution or
extinction of the price; or
(b) Maintain an action against the seller for damages for the breach of
warranty.
(2) The measure of damages for breach of warranty is the estimated loss
directly and naturally resulting in the ordinary course of events, from the breach
of warranty.
(3) In the case of breach of warranty of quality, such loss is prima facie the
difference between the value of the goods at the time of delivery to the buyer and
the value they would have had if they had answered to the warranty.
(4) The fact that the buyer has set up the breach of warranty in diminution
or extinction of the price does not prevent him from maintaining an action for the
same breach of warranty if he has suffered further damage.
55 Interest and special damages, or recovery of money paid
Nothing in this Act shall affect the right of the buyer or the seller to recover
interest or special damages in any case where by law interest or special damages
may be recoverable, or to recover money paid when the consideration for the
payment of it has failed.
1562 Niue Laws 2006 Vol 3
PART 6
SUPPLEMENTARY
56 Exclusion of implied terms and conditions
Where any right, duty or liability would arise under a contract of sale by
implication of law, it may be negatived or varied by express agreement or by the
course of dealing between the parties, or by usage, if the usage is such as to bind
both parties to the contract.
57 Reasonable time a question of fact
Where by this Act any reference is made to a “reasonable time”, the question
what is a reasonable time is a question of fact.
58 Rights and duties under Act enforceable by action
Where any right, duty, or liability is declared by this Act, it may, unless
otherwise by this Act provided, be enforced by action.
59 Auction sales
(1) Where goods are put up for sale by auction in lots, each lot is prima
facie deemed to be the subject of a separate contract of sale.
(2) A sale by auction is complete when the auctioneer announces its
completion by the fall of the hammer, or in other customary manner: until such
announcement is made any bidder may retract his bid.
(3) (a) Where a sale by auction is not notified to be subject to a right to bid
on behalf of the seller, the seller shall not bid himself or employ
any person to bid at such sale, nor shall the auctioneer knowingly
take any bid from the seller or any such person.
(b) Any sale contravening this rule may be treated as fraudulent by
the buyer.
(4) A sale by auction may be notified to be subject to a reserved or upset
price, and a right to bid may also be reserved expressly by or on behalf of the
seller.
(5) Where a right to bid is expressly reserved, but not otherwise, the seller, or any one person on his behalf, may bid at the auction.
60 Savings
(1) The rules in bankruptcy relating to contracts of sale shall continue to
apply to it, notwithstanding anything in this Act.
(2) The rules of the common law, including the law merchant, save in so
far as they are inconsistent with the express provisions of this Act, and in particular
the rules relating to the law of principal and agent, and the effect of fraud,
misrepresentation, duress or coercion, mistake, or other invalidating cause, shall
continue to apply to contracts for the sale of goods.
(3) The provisions of this Act relating to contracts of sale do not apply to
any transaction in the form of a contract of sale which is intended to operate by
way of mortgage, pledge, charge, or other security.
(4) Nothing in this Act shall affect the enactments in force relating to chattels
transfer, or any enactment in force relating to the sale of goods.
––––––––––––––––––––
SCHEDULE [Not reproduced]
1563
SEAL OF NEW ZEALAND ACT 1977
1977/1 (NZ) – 28 February 1977
|
1 |
Short title |
5 |
Validity of instruments | |
|
2 |
Assent of Parliament to establishment, |
6 |
Judicial notice of Seal | |
|
design, and use of Seal of New Zealand |
7-9 [Spent] | |||
|
3 |
Use of Seal | |||
|
4 |
Custody of Seal |
SCHEDULE |
To assent to the establishment, design, and use of a seal to be known as the
Seal of New Zealand and to provide for matters incidental
1 Short title
This is the Seal of New Zealand Act 1977.
2 Assent of Parliament to establishment, design, and use of Seal of New
Zealand
(1) The Parliament of New Zealand hereby assents to the establishment,
by Proclamation, from time to time by Her Majesty and Her successors of a seal to
be known as the Seal of New Zealand for use in relation to New Zealand and all
other territories for whose foreign relations Her Majesty’s Government in New
Zealand is responsible.
(2) The Seal of New Zealand shall be of such design and style as may be
specified in the Proclamation.
(3) No Proclamation made for the purposes of this section shall be required
to be sealed, and every such Proclamation that does not prescribe the time from
which it is to take effect shall come into operation on the day on which it is gazetted.
3 Use of Seal
(1) The Seal of New Zealand shall be the seal to be used on any instrument
that is made by Her Majesty and Her successors, or by the Governor-General, on
the advice of a Minister of Her Majesty’s Government in New Zealand or on the
advice and with the consent of the Executive Council of New Zealand.
(2) The Seal of New Zealand shall be so used in place of any other seal that
may have been so used if this Act had not been passed.
(3) The Seal of New Zealand in being at the time of the death of the
Sovereign shall continue and be made use of until provision for a new Seal of
New Zealand is made by Proclamation.
1564 Niue Laws 2006 Vol 3
4 Custody of Seal
The Seal of New Zealand shall be in the custody of the Governor-General.
5 Validity of instruments
(1) Except where the affixing of the Seal of New Zealand to any instrument
is expressly required by the provisions of any enactment other than this Act, no
instrument shall be declared or deemed invalid on the ground that it should have
been sealed with the Seal of New Zealand but has not been so sealed.
(2) No instrument shall be declared or deemed invalid on the ground that
it should not have been sealed with the Seal of New Zealand but has been so
sealed, or that the Seal of New Zealand has been improperly affixed to it.
6 Judicial notice of Seal
Judicial notice shall be taken by all Courts, Judges, Justices, Commissioners,
and other persons acting judicially of the impression of the Seal of New Zealand,
without evidence of such seal having been impressed or any other evidence relating
thereto.
7-9 [Spent]
––––––––––––––––––––
SCHEDULE [Not reproduced]
1565
TERRITORIAL SEA AND EXCLUSIVE ECONOMIC ZONE ACT
1996
1997/220 – 7 April 1997
1 Short title
2 Interpretation
3 Reference to money amounts
PART 1
TERRITORIAL SEA
4 Territorial sea
5 Internal waters
6 Baseline of territorial sea
7 Foreshore, bed of internal waters, and
territorial sea vested in Crown
8 Official chart
9 Permanent harbour works
PART 2
EXCLUSIVE ECONOMIC ZONE
10 Exclusive Economic Zone
PART 3
APPLICATION
11 Application
PART 4
FISHERIES MANAGEMENT AND DEVELOPMENT
12 Designated fisheries
13 Management and development plans
14 Variation of management and
development plan
15 Exemptions
16 Revocation of management and
development plan
17 Offences
PART 5
UNAUTHORISED FISHING AND PROHIBITED FISHING
METHODS
18 Unauthorised fishing prohibited
19 Prohibited fishing methods
20 Driftnets and other equipment on board
vessels
21 Evidentiary certificate
21A Release of protected fish
PART 6
ACCESS AGREEMENTS
22 Access agreements
23 Licenses taken to have been issued under
this Act
24 Persons may act on behalf of the
Government of Niue in certain cases
25 Related agreements
PART 7
LICENSING
27 Application for licensed fishing craft
28 Issue of licenses
29 General conditions of licences
30 Variation and revocation of conditions
31 Statutory conditions
32 Term of licence
33 Authority to use fishing craft for certain
activities
34 Fees
35 Assignment of license or authorisation
36 Cancellation or suspension of licence
37 Appeals
PART 8
AUTHORISED OFFICERS AND OBSERVERS
38 Appointment of authorised officers
39 Power of authorised officers
40 Powers of authorised officers beyond limits
of fishery waters
41 Treatment of seized vessels
42 Removal of parts from seized vessels
43 Observers
44 Duties to authorised officers and observers
45 Identification of authorised officers and
observers
46 Protection of authorised officers, observers
and others
47 Information must be true, complete and
correct
1566 Niue Laws 2006 Vol 3
PART 9 PART 10
SALE, RELEASE AND FORFEITURE OF RETAINED GENERAL PENALTY AND LIABILITY
PROPERTY 58 Liability of master
48 Release of seized goods 59 Penalties
49 Sale of perishable goods seized
50 Seized goods to be held PART 11
51 Court’s power of forfeiture REGULATIONS
52 Application of bond, security or proceeds 60 Regulations
of sale
|
53 |
Removal of forfeited goods |
PART 12 | ||
|
54 |
Disposal of seized or forfeited goods |
61-62 |
[Spent] | |
|
55 |
Liability for loss, damage or deterioration | |||
|
of items in custody | ||||
|
56 |
Banning order | |||
|
57 |
Removal of item in custody |
To make provision with respect to the territorial sea of Niue and to establish an exclusive economic zone for Niue adjacent to the territorial sea, and in the exercise of the sovereign rights of Niue to make provision for the exploration and exploitation, and conservation and management of the resources of the zone, and related matters
1 Short title
This is the Territorial Sea and Exclusive Economic Zone Act 1996.
2 Interpretation
(1) In this Act –
“access agreement” means an agreement under section 22 and includes
any other agreement or arrangement entered into under such an
agreement;
“authorised officer” means –
(a) The Director; or
(b) A fisheries officer; or
(c) A constable; or
(d) A surveillance officer; or
(e) A person appointed under section 38; or
(f) A person or body referred to in section 24;
“body corporate” means a body corporate resident on Niue;
“commercial fishing” means taking fish for sale;
“designated fishery” means any fishery designated under section 12;
“Director” means the Director of Agriculture, Forestry and Fisheries;
“driftnet” means a gillnet or other net which is more than 2.5 kilometres in
length, the purpose of which is to enmesh, entrap, or entangle fish;
“driftnet fishing” means fishing with a driftnet;
“exclusive economic zone” means the exclusive economic zone of Niue
described in section 10;
“fish” means any aquatic plant or animal, whether piscine or not, and
includes any oyster or other mollusc, crustacean (including uga), coral,
sponge, holothurian (beche-de-mer), or other echinoderm, turtle and
marine mammal, and include their eggs, spawn, spat and juvenile
stages;
Territorial Sea and Exclusive Economic Zone Act 1996
1567
“fisheries officer” means a fisheries officer appointed by the Niue Public
Service Commission and responsible to the Director;
“fishery” means one or more stocks of fish or any fishing operation based
on those stocks which can be created as a unit for the purposes of
conservation and management;
“fishery waters” means all –
(a) The internal waters of Niue (including lagoons);
(b) The territorial sea of Niue; and
(c) The exclusive economic zone;
“fishing” means activity that is either –
(a) Searching for, catching, taking or harvesting fish;
(b) The attempted searching for, catching, taking or harvesting of fish;
(c) Engaging in any activity which can reasonably be expected to result
in the locating, catching, taking or harvesting of fish;
(d) Placing, searching for or recovering any fish, aggregating device or
associated equipment including radio beacons;
(e) Fish processing within the fishery waters;
(f) Transshipment within the fishery waters;
(g) Any operation at sea in support of or in preparation for any activity
described in this paragraph;
(h) The use of any fishing craft in relation to any activity described in
this definition;
(i) Any related activity; or
(j) The use of any vehicle, vessel or aircraft, for any activity described
in this paragraph, except for emergencies involving the health or
safety of crew members or the safety of the vessel;
“fishing craft” means any vessel, aircraft, hovercraft, submersible craft, or
other craft, of whatever size, that is capable of being used for fishing
but, shall not include any vessel that is 5 metres or less in overall length;
“fishing gear” means any equipment, implement, or other thing that can
be used in the act of fishing, including any fishing net, rope, line, float,
trap, hook, winch, fishing craft or vessel;
“fish processing” means the producing of any substance or article from
fish by any method and includes the cutting up, dismembering,
cleaning, sorting, loining, freezing, canning, salting and preserving of
fish;
“fish processing establishment” means a place (other than a licensed fishing
craft) where fish are canned, dried, gutted, salted, iced, chilled, frozen
or otherwise processed for sale on or outside Niue;
“foreshore” means all the land between the high water line at mean-high
water spring tides and the low water line at mean-low-water spring
tides;
“Gazette” means any periodical printed publication circulating in Niue such
as the Niue Star;
“highly migratory species” means species that, in the course of their life
cycle, migrate over great distances of ocean;
“low-water mark” has the meaning assigned to it by section 8(1);
“master”, in relation to any fishing craft, means the person for the time
being having command or charge, or apparent command or charge of
the craft;
1568 Niue Laws 2006 Vol 3
“median line” as between Niue and any other country, means a line every point of which is equidistant from the nearest points of the baseline of the territorial sea of Niue and the corresponding baseline of that other country;
“Minister” means the Minister responsible for fisheries; “nautical mile” means the international nautical mile;
“Niuean” includes a person having the status of permanent resident as defined in the Entry, Residence and Departure Act 1985 and its Regulations;
“observer” means any person authorised to act as an observer under section
38 and includes any person who has any or all of the functions, powers
and duties of an observer under an access agreement;
“observer device” means any device or machine placed on a fishing craft
in accordance with this Act or an access agreement which transmits
(whether in conjunction with other machines elsewhere or not),
information or data concerning the position of fishing activities of the
fishing craft;
“operator” in relation to any fishing craft includes any body of persons,
whether incorporated or not, by whom the craft is operated, and any
owner, charterer, master, lessee, or sub-lessee who exercises control over
any of the fishing activities of the craft;
“owner”, in relation to a fishing craft, includes any person or body of
persons whether incorporated or not, by whom the craft is owned, and
any charterer, sub-charter, lessee or sub-lessee;
“prescribed” means prescribed by regulations made under this Act;
“protected fish species” means the species of fish the Government of Niue
recognises as fish that are to be protected within Niue’s territorial sea
and exclusive economic zone such as –
(i) Cetaceans; all species of whales identified within/under the 3
groups Right Whale, Grey Whale, and Rorquals;
(ii) Cetaceans; All species of whales identified within/under the 5
groups Sperm Whale, Beaked Whale, Belugas Whale, Narwhal,
and Dolphin and Porpoise;
(iii) All marine species of the Chelonia order which, includes all
species of Turtle;
(iv) Myliobatdidae; rays, all species; and
(v) Lamniformes; sharks, all species;
“Regional register” means the Regional Register of Foreign Fishing Vessels
maintained by the South Pacific Forum Fisheries Agency at Honiara,
Solomon Islands;
“related activity” means doing anything in support of, or in preparation
for, fishing operations, including doing, or attempting or preparing to
do or having done any of the following –
(a) Transshipping fish; or
(b) Storing, processing or transporting fish at any time before the fish
is or are brought on land; or
(c) Refuelling or supplying fishing craft; or
(d) Performing activities in support of fishing operations;
“surveillance officer” means any officer of a vessel or aircraft used for the
enforcement of this Act, whether or not the officer is a Niuean and
whether or not the vessel or aircraft is registered in Niue;
“territorial sea” means the area of the sea defined in section 4;
Territorial Sea and Exclusive Economic Zone Act 1996
1569
“transshipment” means transferring any fish or fish product to or from one fishing craft to another;
“vessel” means any boat, ship or other water-going craft.
(2) The administration of this Act is under the control and direction of
Cabinet, which may delegate, either generally or particularly all or any of the
powers conferred on it under this Act.
3 Reference to money amounts
(1) A reference in this Act or the regulations to any penalty or fee, the amount
of which is specified, or to any other specified amount of money, is to be read as a
reference to the specified amount in the currency of the United States of America.
(2) A reference in this Act or the regulations to a penalty or fee, the amount
of which is not specified, or to any other unspecified amount of money, is to be
read as empowering the person or body authorised to specify the amount to do so
in the currency of the United States of America.
4 Territorial sea
PART 1
TERRITORIAL SEA
The territorial sea of Niue comprises those areas of the sea having, as their inner limits, the baseline described in section 6 and, as their outer limits, a line measured seaward from that baseline, every point of which is distant 12 nautical miles from the nearest point of the baseline.
5 Internal waters
The internal waters of Niue include any areas of the sea that are on the
landward side of the baseline of the territorial sea of Niue.
6 Baseline of territorial sea
The baseline from which the breadth of the territorial sea is measured shall
be the low-water mark along the coast of Niue or where there is a coral reef along
any part of the coast of Niue, the low-water mark along the outer edge of the coral
reef.
7 Foreshore, bed of internal waters, and territorial sea vested in Crown
(1) The seabed and subsoil of the submarine areas of the internal waters of
Niue are, and are taken always to have been, vested in the Crown.
(2) The foreshore of Niue and 10 metres inland from the foreshore and the
seabed and subsoil of the territorial sea are, and are taken always to have been
vested in the Crown.
8 Official chart
(1) For the purposes of this Act, the low-water mark in a particular area is
the line of low water at mean low-water spring tides as shown on the largest scale
British Admiralty chart for the time being of that area.
(2) In any proceedings in a court, a certificate purporting to be signed by
an officer of the New Zealand Naval Forces authorised by the Secretary of Defence
or a Deputy Secretary of Defence, stating that a specified chart of a specified area
is the largest scale British Admiralty Chart for the time being of that area is
admissible as evidence of the matters stated in the certificate.
1570 Niue Laws 2006 Vol 3
9 Permanent harbour works
For the purposes of this Act, permanent harbour works forming an integral
part of a harbour system are taken to form part of the coast of Niue.
PART 2
EXCLUSIVE ECONOMIC ZONE
10 Exclusive Economic Zone
(1) The exclusive economic zone of Niue comprises those areas of the sea,
seabed and subsoil that are beyond and adjacent to the territorial sea having as
their outer limits a line measured seaward from the baseline described in section
6, every point of which line is distant 200 nautical miles from the nearest point of
the baseline.
(2) Notwithstanding subsection (1), where any part of the median line
between Niue and any other country is less than 200 nautical miles from the nearest
part of the baseline of the territorial sea of Niue that part of the median line shall
be an outer limit of the zone.
11 Application
PART 3
APPLICATION
(1) This Act applies to every person, every fishing craft and every vessel, fishing within fishery waters.
(2) No fishing craft shall be used for commercial fishing unless the craft is licensed under section 28.
PART 4
FISHERIES MANAGEMENT AND DEVELOPMENT
12 Designated fisheries
If Cabinet thinks it is in the national interest to ensure the effective
conservation or the efficient use of a fishery, it may, by notice in the Gazette declare
the fishery to be a designated fishery.
13 Management and development plans
(1) The Director may direct a Fisheries Officer to prepare and implement a
management and development plan for a designated fishery.
(2) The management and development plan shall –
(a) Identify the fishery to which it relates; and
(b) Set out the objectives to be achieved by the plan; and
(c) Specify the management measures to be adopted to achieve those
objectives; and
(d) Specify what protection is to be given to the habitat of the fishery;
and
(e) Specify the limits within which the fishery may be exploited; and
(f) Specify what licensing requirements (if any) are to apply to anyone
who wants to operate within a fishery; and
(g) Specify what protection is to be given to any other designated fishery
(whether by way of management measures, habitat protection,
exploitation limits or licensing requirements) for the purpose of –
(i) Ensuring the conservation of the fishery in accordance with its
management and development plan; or
(ii) Ensuring that the objectives set out in the management and
development plan can be achieved;
(h) Identify new protected fish species.
Territorial Sea and Exclusive Economic Zone Act 1996
1571
14 Variation of management and development plan
(1) If the Director thinks that a management and development plan should
be varied in order to ensure the effective conservation or the efficient use of the
fishery to which it relates, the Director may, in writing, prepare a variation of the
plan and submit it to Cabinet for approval.
(2) A variation takes effect when it is approved by Cabinet or at such other
time as Cabinet determines.
15 Exemptions
(1) Cabinet may, on application made by or on behalf of a person or a
group of persons, declare that a management and development plan, or a specified
part of such a plan, is not to apply to the person or group.
(2) Cabinet may make a declaration subject to such conditions, if any, as
Cabinet thinks necessary in order to ensure the effective conservation or efficient
use of the fishery to which the management and development plan relates.
16 Revocation of management and development plan
If Cabinet is satisfied that the objectives set out in a management and
development plan have been achieved, the Cabinet may revoke the plan by notice
in the Gazette.
17 Offences
(1) A person may not contravene or fail to comply with a provision of a
management and development plan that applies to the person.
Penalty: A fine not exceeding 1,000 penalty units.
(2) A person must not contravene or fail to comply with a direction given
to the person by an authorised officer, being a direction that is consistent with a
management and development plan, or part of such a plan, that applies to the
person.
Penalty: A fine not exceeding 1,000 penalty units.
(3) In this section, person includes a Niuean and a resident of Niue.
PART 5
UNAUTHORISED FISHING AND PROHIBITED FISHING METHODS
18 Unauthorised fishing prohibited
(1) A person shall not engage in commercial fishing in fishery waters unless
the person is licensed, authorised or otherwise permitted to do so by or under this
Act or the regulations.
Penalty: A fine not exceeding 1,000 penalty units and the Court may order the
confiscation of fishing gear.
(2) A fishing craft shall not –
(a) Do anything in fishery waters that is not authorised or permitted
by or under international law; or
(b) Be used for fishing in fishery waters unless it is licensed, authorised
or otherwise permitted to do so by or under this Act or the
regulations.
(3) A fishing craft shall not, while in any area within fishery waters, carry
any fishing gear that is stored in a way that would allow it to be made readily
available for fishing in that area, unless the vessel is licensed for use for fishing in
that area or such use otherwise authorised or permitted by or under this Act or
the regulations.
1572 Niue Laws 2006 Vol 3
(4) If a fishing craft contravenes subsection (2) or (3), the owner or charterer and the master of the vessel are each guilty of an offence.
Penalty: A fine not exceeding 5,000 penalty units and the Court may order confiscation of fishing gear.
19 Prohibited fishing methods
(1) A person shall not –
(a) Have control or possession of a driftnet; or
(b) Engage in driftnet fishing in fishery waters; or
(c) Use any explosives, poison or other noxious substance for the
purpose of killing, stunning, disabling or catching fish in fishery
waters; or
(d) Bring on land, sell, dispose of, receive or have possession of any
fish caught in contravention of paragraph (b) or (c).
Penalty: A fine not exceeding 100 penalty units.
(2) If a contravention of subsection (1) occurs on board a vessel or by use
of a vessel, the owner or charterer, and the master, of the vessel is each guilty of an
offence.
Penalty: 2,500 penalty units and the Court may order confiscation of fishing gear.
20 Driftnets and other equipment on board vessels
(1) If a driftnet is found on board a vessel, then, for the purpose of any
proceedings under section 19 –
(a) The driftnet is taken to be in the possession and control of the owner
or charterer, and of the master of the vessel; and
(b) The vessel is taken to have been used for the purpose of driftnet
fishing in fishery waters; and
(c) Fish on board the vessel are taken to have been caught in fishery
waters by driftnet fishing.
(2) If an explosive, poison or other noxious substance is found on board a
vessel that is used mainly for the purpose of fishing the explosive, poison or
substance is to be presumed, unless the contrary is proved to be intended for use
in contravention of section 19 (1)(c).
21 Evidentiary certificate
In any proceedings for an offence against section 19, a certificate signed by
an authorised officer stating the cause and manner of death or injury of specified
fish, or the circumstances surrounding the alleged commission of the offence, is
evidence of the matter stated in the certificate.
21A Release of protected fish
(1) Any person who catches a protected fish species must release the fish
unharmed where caught.
(2) Any person who fails to comply with subsection (1) commits an offence
and is liable on conviction to a fine not exceeding 1000 penalty units.
22 Access agreements
PART 6
ACCESS AGREEMENTS
(1) The Minister may, with Cabinet’s approval, enter into a bilateral or multilateral access agreement on behalf of the Government of Niue with the government or governments of one or more other countries.
Territorial Sea and Exclusive Economic Zone Act 1996
1573
(2) An access agreement may provide for vessels owned or controlled by the country concerned, or by its nationals –
(a) To be licensed for use in fishing in fishery waters and have access to those waters for that purpose; and
(b) Engage in any other related activities.
(3) The Minister may, in entering into access agreements, grant preferential
access to vessels owned or controlled by member countries of the South Pacific
Forum Fisheries Agency.
(4) Every access agreement must –
(a) Provide for fishing allocations at a level consistent with the proper
conservation and management of fishery resources; and
(b) Be consistent with any relevant management and development plan;
and
(c) Provide for the proper protection of fishing by Niueans; and
(d) Require the other parties to the agreement to take all necessary steps
to ensure that the vessels covered by the agreement comply with
the terms of the agreement and with the applicable laws of Niue;
and
(e) Require the transshipment of fish at a time and place authorised by
the licensing authority under the agreement except in cases where
a licensed group seiner carries out transshipment to its licensed
carrier vessel with the prior approval of the licensing authority;
and
(f) Require the master of each vessel covered by the agreement to
maintain fishing data about fishing carried out using the vessel on
the high seas adjacent to the fishery waters, and to report that data
in the prescribed form and manner to the Fisheries Officer; and
(g) Provide for the issuing of licences for fishing in fishery waters, or
in a specified part of those waters, on terms and conditions
consistent with this Act.
23 Licences taken to have been issued under this Act
A licence, or authorisation issued or granted under an access agreement is,
for the purposes of this Act, taken to have been issued or granted under this Act.
24 Persons may act on behalf of the Government of Niue in certain cases
(1) A multilateral access agreement may authorise a person or body to act
on behalf of the Government of Niue, or to act on its behalf in the performance of
any obligations, duties or responsibilities (including the issue of licences).
(2) Any act done by any person, on behalf of the Government of Niue
under an authority given in a multilateral access agreement is taken to have been
done by the Government of Niue.
25 Certain provisions to have no effect
A provision in an access agreement has no effect if it –
(a) Purports to operate in substitution of this Act; or
(b) Purports to prevent the Government of Niue from enforcing
compliance with any provision of the access agreement; or
(c) Purports to prevent the Government of Niue from taking
proceedings under this Act against any person in respect of any
fishing activity not authorised by the agreement.
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26 Related agreements
(1) The Minister may, with Cabinet’s approval, enter into any other
agreement that may be appropriate for the promotion of fisheries co-operation
and harmonisation between Niue and any other country or countries.
(2) Without limiting subsection (1), the agreements referred to in that
subsection could include, for example, agreements relating to –
(a) The harmonisation of minimum terms and conditions for access to
fisheries; or
(b) The implementation of multilateral access agreements; or
(c) The establishment of harmonised joint or reciprocal fisheries
surveillance and enforcement measures;
(d) The harmonisation of joint exploration and development of
fisheries; or
(e) The development of observer programmes; or
(f) The harmonisation of transshipment requirements; or
(g) The harmonisation of fisheries conservation and management.
PART 7
LICENSING
27 Application for licensed fishing craft
(1) An application for a licence for a fishing craft may be made by or on
behalf of the owner or charterer of the craft.
(2) An application must be in writing and lodged with the Director. It must
include the following particulars –
(a) The fishing craft’s name, international radio call sign, specifications
and country of registration;
(b) The name of the owner or charterer, and the master, of the vessel;
(c) The fishery resources to be exploited and the period during which
exploitation is expected to occur;
(d) The term for which the licence is sought;
(e) The allocation of the fishery resources sought;
(f) The desired area of the fishery waters within which the exploitation
is to be carried out;
(g) The method to be used to exploit the fishery resource;
(h) The way in which the catch or harvest is to be disposed of, including
particulars of the port where this is to occur and a statement
indicating whether the catch or harvest is to be processed and, if
so, in what form;
(i) The estimated costs of exploiting the fishery resources and the
estimated amount of the revenue to be derived from the exploitation;
(j) Such other matters, if any, as are prescribed.
(3) An application must also include statements indicating –
(a) Whether the vessel has at any time contravened an access agreement
(whether the Government of Niue is a party or not), and, if so, the
nature of the contravention and the action taken or the penalty
imposed as a consequence; and
(b) Whether the vessel is the subject of an inquiry or investigation
relating to an alleged contravention of such an access agreement
and, if so, the nature of the allegation; and
(c) Whether the vessel is subject to any encumbrance, charge, lien,
mortgage or liability whether potential, or actual, and whether or
not arising out of any inquiry, investigation or legal proceeding;
and
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(d) Whether the vessel has been denied approval to fish in the waters of any other country and, if so, the reasons for the denial; and
(e) Whether the vessel has had its approval to fish in the waters of any other country suspended or withdrawn and, if so, the reasons for the suspension or withdrawal.
(4) An application must also include statements indicating –
(a) Whether the owner, charterer or master of the vessel has
contravened any access agreement (whether the government of
Niue is party or not) and, if so, the nature of the contravention; and
(b) Whether the owner, charterer or master of the vessel is alleged to
have contravened such an access agreement and if so, the nature of
the allegation; and
(c) Whether the owner, charterer or master of the vessel is or has been
involved in an inquiry, investigation or legal proceeding as a
consequence of being engaged in fishing in the waters of any other
country, and, if so particulars of that involvement; and
(d) Whether the owner, charterer or master of the vessel has incurred
any unsatisfied liability or penalty or may incur any liability or
penalty, arising out of any contravention, inquiry, investigation or
proceeding mentioned in paragraph (a), (b) or (c); and
(e) Whether the owner, charterer or master of the vessel has engaged
or is alleged to have engaged, in driftnet fishing.
28 Issue of licences
(1) The Minister may, on an application made under section 27 and with
Cabinet’s approval, issue a licence permitting a fishing craft identified in the application to be used –
(a) For fishing (including test fishing) in the fishery waters; and
(b) For scientific research in the fishery waters.
(2) The Minister may issue a licence in respect of a fishing craft whether or
not the fishing craft is covered by an access agreement which is in force.
(3) A licence shall –
(a) Specify the particular fishing activity permitted by it; and
(b) Provide fishing allocations at a level consistent with the proper
conservation and management of fishery resources; and
(c) Be consistent with any relevant management and development plan;
and
(d) Ensure the protection of fishing by Niueans.
(4) In approving a licence, the Cabinet may impose any special conditions
that it thinks desirable to ensure the proper conservation and management of
fishery resources, including, for example, conditions relating to the following –
(a) The type and method of fishing;
(b) The area within which fishing is permitted;
(c) The target species and quantity of fish authorised to be caught,
including restrictions on by-catches;
(d) The term of the licence.
(5) The Cabinet must not approve a licence unless satisfied that it ensures
appropriate protection of fishing by Niueans.
(6) A licence must not be issued to a fishing craft under this section, unless
that fishing craft is in good standing on the Regional Register.
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(7) If a fishing craft is not registered on the Regional Register a licence may nevertheless be issued to a fishing craft that is fully owned or controlled by –
(a) The Government of Niue; or
(b) A Niuean; or
(c) A person resident in Niue.
(8) In this section –
“test fishing” means fishing for the purpose of testing the feasibility of
commercial fishing;
“scientific fishing” means gathering data for the purpose of conserving or
managing a fishery.
29 General conditions of licences
(1) The Cabinet may, by notice in the Gazette, specify general conditions
applicable to all licences.
(2) A general condition is taken to come into operation on a date specified
in the notice or, if no date is specified, on the day on which it is published in the
Gazette.
(3) General conditions applicable to all licences, whether or not an access
agreement is in effect, may include, for example, conditions relating to the
following –
(a) Open and closed fishing seasons;
(b) Prohibited fishing areas;
(c) Minimum mesh size of fishing nets;
(d) Minimum fish size;
(e) Observer devices;
(f) Any other general conditions as required by Cabinet.
(4) Any person who, whether intentionally or unintentionally, destroys,
damages, renders inoperative or otherwise interferes with an observer device
aboard a fishing craft without first obtaining the approval of the Director, commits
an offence.
Penalty: A fine not exceeding 2,500 penalty units.
30 Variation and revocation of conditions
(1) Cabinet may, if satisfied that it is necessary to do so to ensure the proper
conservation or management of fishery resources, add to, vary or revoke any special
or general conditions imposed under this Act.
(2) A general condition must be varied or revoked by notice in the Gazette.
(3) If Cabinet adds a new general condition, it must do so by notice in the
Gazette.
(4) If Cabinet adds a new special condition or varies or revokes a special
condition, it must cause the holder of the licence concerned to be notified
accordingly.
31 Statutory conditions
Every licence issued under Part 7 is subject to the following conditions –
(a) The owner or charterer, and the master of the fishing craft to which
the licence applies must comply with the laws of Niue;
(b) The performance by the fishing craft to which the licence relates
must at all times be consistent with the information, and financial
projections, given in the application for the licence.
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32 Term of licence
(1) Subject to this Act and any special or general conditions imposed by or
under this Act, the term of a licence issued under Part 7 shall be for a period of one
year from the date the licence is issued.
(2) A licence issued under this Act may be renewed on application made
under section 27 before the end of the latest term of the licence.
33 Authority to use fishing craft for certain activities
(1) The Director may, with Cabinet’s approval, authorise the use of a fishing
craft for a specified fishing activity within fishery waters.
(2) An authorisation may be made subject to such conditions, if any, as the
Cabinet determines.
(3) The Director must not grant an authorisation under this section unless
satisfied –
(a) That it would not be appropriate in the circumstances to require a licence to be issued permitting the fishing craft to be used for the relevant activity; and
(b) That the activity will not involve catching fish; and
(c) That the activity will not be continuing one.
34 Fees
(1) There shall be a fee payable for every licence issued and for
authorisations granted under this Act, provided however, where an access
agreement specifies the making of such payments no additional payment shall be
required.
(2) Cabinet shall prescribe the fees payable for the issue of licences and
shall determine the amount payable for the granting of an authorisation.
35 Assignment of licence or authorisation
(1) A licence or authorisation issued or granted under this Act is not
transferable, except with Cabinet’s approval or under an access agreement.
(2) Any provision in a contract or arrangement that purports to assign,
transfer or dispose of all or any of the rights or benefits conferred by a licence or
authorisation issued or granted under this Act is void.
(3) Each person who enters into an agreement or arrangement that contains
a provision of the kind described in subsection (2) is guilty of an offence.
Penalty: A fine not exceeding 1,000 penalty units.
(4) For the purpose of this section, the charter of a fishing craft in respect
of which a licence or authorisation has been issued or granted under this Act, is
taken to be a transfer of the licence or authorisation.
36 Cancellation or suspension of licence
(1) Cabinet may cancel a licence issued under this Act, or suspend such a
licence for the period determined by Cabinet if –
(a) The licence is, or becomes, inconsistent with the requirements of a
management and development plan; or
(b) The fishing craft in respect of which it is issued, or the owner,
charterer or the master of the fishing craft, has contravened –
(i) A provision of this Act; or
(ii) A condition of the licence; or
(iii) If the licence was issued under an access agreement, a provision
of the agreement; or
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(c) A payment due under, or in respect of, the licence is outstanding;
or
(d) The fishing craft’s good standing on the Regional Register is
suspended or withdrawn; or
(e) The fishing craft, or the owner, charterer or master of the fishing
craft has been engaged in driftnet fishing; or
(f) There is a driftnet on board the fishing craft.
(2) The owner, charterer, or the master, of a fishing craft whose licence is
cancelled or suspended must be notified of the cancellation or suspension in
accordance with the Cabinet’s directions.
(3) A cancellation or suspension takes effect when the notice referred to in
subsection (2) is given.
(4) If a licence is cancelled or suspended on the ground mentioned in
subsection (1) (a) any fee paid in respect of the issue of the licence must be
apportioned, and the amount that represents the unexpired part of the term of the
licence worked out on a pro rata basis, must be reimbursed to the person who
paid the fee.
37 Appeals
A person aggrieved by a decision of the Cabinet to cancel or suspend a
licence may, within 21 days after the cancellation or suspension takes effect, appeal
to a Judge of the Court against the decision.
PART 8
AUTHORISED OFFICERS AND OBSERVERS
38 Appointment of authorised officers
(1) The Minister may, by notice in the Gazette, appoint a person, or each
person in a class of persons (including a national or nationals of another country),
to be an authorised officer for the purposes of this Act.
(2) The Minister may direct than an authorised officer shall not be an
employee of the Public Service Commission.
39 Powers of authorised officers
(1) For the purposes of enforcing this Act, an authorised officer may,
without a warrant do any of the following –
(a) Stop, board and search any fishing craft to which this Act applies
that the officer reasonably suspects has contravened or is
contravening this Act;
(b) Stay on board that fishing craft;
(c) Require the master or anyone else on board to tell the officer the
fishing craft’s name, call sign and country of registration and the
name of the master, owner, charterer or other crew member;
(d) Require the master or anyone else on board, to answer questions
about the fishing craft’s cargo, the contents of its holds and storage
spaces, and its voyage and activities;
(e) Make any examination and inquiry that the officer thinks necessary
about any premises, vessel, vehicle or aircraft in relation to which
any of the powers conferred by this section have been or may be
exercised, and take samples of any fish or fish product found in or
on the premises, vessel, vehicle or aircraft;
(f) Examine and take copies of any licence, logbook, record or other
document that is required under this Act or that concerns the
operation of any fishing craft;
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(g) Make, date and sign an entry in the fishing craft’s log;
(h) Examine any fish, fishing gear or explosive, poison or other noxious
substance in or on any premises, vessel, vehicle or aircraft;
(i) Give any directions to the master or to a crew member of any fishing
craft stopped, boarded or searched that may be necessary or
reasonably expedient for any purpose specified in this Act, or to
provide for the compliance of the fishing craft or master or any
crew member with the conditions of any licence, authority,
permission or approval given or issued under this Act;
(j) Examine any observer device;
(k) Require the master of a fishing craft, or a person apparently in charge
of any premises, vehicle or aircraft, to produce to the officer any
thing mentioned in paragraph (f), (h) or (j) that is in or on the fishing
craft, premises, vehicle or aircraft.
(2) Where an authorised officer has reasonable grounds to believe an
offence against this Act is being or has been committed, he may without a warrant –
(a) Enter, inspect and search any premises, other than premises used
exclusively as a dwelling-house, in which he has reasonable grounds
to believe an offence has been or is being committed or fish taken
illegally are being stored;
(b) Stop, enter and search, and stay in or on any vehicle or aircraft
which he reasonably suspects of transporting fish or fish products;
(c) Following hot pursuit in accordance with international law and
commenced within the fisheries waters, stop, board and search
outside the fisheries waters any vessel which he has reasonable
grounds to believe has been used in the commission of any offence
and bring that vessel and all persons and things on board within
the fisheries waters;
(d) Seize –
(i) Any vessel (together with its fishing gear, equipment, stores
and cargo), vehicle or aircraft which he has reasonable grounds
to believe has been or is being used in the commission of an
offence or which he knows or has reasonable grounds to believe
has been seized or forfeited under this Act;
(ii) Any fish or fish products which he has reasonable grounds to
believe have been caught in the commission of an offence or
are possessed in contravention of this Act;
(iii) Any logs, charts or other documents required to be maintained
by this Act or under the terms of any licence or permit or which
he has reasonable grounds to believe show or tend to show,
with or without other evidence, the commission of an offence
against this Act;
(iv) Anything which he has reasonable grounds to believe might
be used as evidence in any proceedings under this Act; and
(e) Arrest any person whom he has reasonable grounds to believe has
committed an offence against this Act.
(3) An authorised officer may, with or without a warrant or other process –
(a) Execute any warrant or other process issued by any court of
competent jurisdiction; and
(b) Exercise any other lawful authority.
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40 Powers of authorised officers beyond limits of fishery waters
If a vessel in hot pursuit is beyond the limits of the fishery waters, the
powers conferred on authorised officers under this Act may be exercised beyond
the limits of the fishery waters under international law.
41 Treatment of seized vessels
(1) If a fishing craft is seized under this Act –
(a) The master and crew must take it to the nearest or most convenient
port designated by the authorised officer; and
(b) The master is responsible for the safety of the fishing craft and
everyone on board the fishing craft, until the fishing craft arrives at
the designated port.
(2) If the master does not take the seized fishing craft to the designated
port, an authorised officer, or person called upon to assist the officer may do so.
(3) If a fishing craft is brought to port in the circumstances described in
subsection (2), no claim whatever may be made against an authorised officer or
the Government of Niue in respect of any death, injury, loss or damage incurred
while the vessel is being taken to the designated port.
(4) The provisions of subsections (1), (2) and (3) apply (with the necessary
changes) to vehicles and aircraft seized under this Act, and their drivers and pilots
respectively.
(5) The owner and operator shall pay the costs of any environmental
damage, cleaning, disposal or removal of fishing craft from Niue’s exclusive
economic zone.
42 Removal of parts from seized vessels
(1) An authorised officer may remove any part or parts from any fishing
craft held in the custody of the Government of Niue for the purpose of immobilising
the fishing craft.
(2) The authorised officer who removes a part or parts under subsection
(1) must ensure that the part or parts are kept safely and returned to the fishing
craft on its lawful release from custody.
(3) A person must not –
(a) Possess or arrange to obtain any part or parts removed under
subsection (1), except for the purposes of keeping the part or parts
safely under subsection (2); or
(b) Possess or arrange to obtain or make any replacement or substitute
part or parts for those removed under subsection (1); or
(c) Fit any part or parts or any replacement or substitute part or parts
to a fishing craft, held in the custody of the Government of Niue.
Penalty: A fine not exceeding 2,500 penalty units.
43 Observers
(1) The Director may designate, in writing, one or more persons to act as
observers on fishing craft in respect of which a licence or authorisation has been
issued or granted under this Act.
(2) An access agreement may confer on a person the powers and duties of
an observer and may confer powers and duties on the person in addition to those
conferred by this section.
(3) An observer may board any fishing craft in respect of which a licence
or authorisation has been granted under this Act for the purpose of –
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(a) Ensuring compliance by the fishing craft and its crew with this Act and the terms and conditions of the licence or authorisation; or
(b) Monitoring any of the fishing craft’s activities; or
(c) Undertaking any research determined by the Director.
(4) The operator, and each member of the crew, of the fishing craft must
allow and assist an observer to exercise all or any of the following powers –
(a) To board the fishing craft;
(b) To gain full access to, and use of any of the facilities and equipment
on the fishing craft that the observer thinks necessary to carry out
his duties;
(c) To gain full access to the bridge and to areas which may be used to
hold, weigh and store fish;
(d) To gain full access to the fishing craft’s records (including its log)
and gather any information he requires relating to fisheries in fishery
waters;
(e) To gain full access to any fish on the fishing craft and to take samples
of them;
(f) To inspect and copy the fishing craft’s records (including its logs);
(g) To disembark at the time and place determined by the Director or
under an access agreement.
(5) The operator must provide the observer, while on board the fishing
craft and at no expense to the Government of Niue, with food, accommodation
and medical facilities as may be reasonably acceptable to the Director.
(6) An observer may enter in or on any place where fish taken in the fishery
waters is unloaded or transshipped, and may remove samples and gather any
information he requires relating to fisheries in the fishery waters.
44 Duties to authorised officers and observers
(1) The master and each crew member of any fishing craft, the driver of
any vehicle and the pilot and crew of any aircraft must comply immediately with every lawful instruction or direction given by an authorised officer or an observer. (2) The master and each crew member of a fishing craft, driver of a vehicle
and pilot and crew of an aircraft must take all reasonable measures –
(a) To ensure the safety of an authorised officer or observer in the
performance of his duties; and
(b) To assist the officer or observer in the performance of those duties
or the exercise of any of his powers.
(3) A person must not –
(a) Assault, obstruct, resist, delay, intimidate or otherwise interfere with
an authorised officer or observer in the performance of his duties;
or
(b) Assault, obstruct, resist, delay, intimidate or otherwise interfere with
anyone lawfully acting under the orders, or in aid of, an authorised
officer; or
(c) Threaten, insult or use abusive language or insulting gestures
towards any authorised officer or observer while performing his
duties or exercising his powers; or
(d) Threaten, insult or use abusive language or threatening gestures
towards any one lawfully acting under the orders, or in aid of an
authorised officer; or
(e) Fail to comply with the lawful requirements of any authorised officer
or observer; or
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(f) Give an authorised officer any particulars which the person knows are false or misleading in a material respect; or
(g) Impersonates or falsely represents himself to be an authorised officer, or falsely represents himself to be a person lawfully acting under an authorised officer ’s orders or in his aid.
Penalty: A fine not exceeding 2,500 penalty units or imprisonment for a term not
exceeding 2 months or both.
45 Identification of authorised officers and observers
An authorised officer or observer, when exercising any of the powers
conferred by this Act, must, if asked to do so, produce identification to show he is
an authorised officer or observer under this Act.
46 Protection of authorised officers, observers and others
An action or other proceeding (whether civil or criminal) does not lie against
a person in relation to any thing done, or not done, by the person in good faith in
the performance or exercise, or purported performance or exercise of the person’s
functions or powers under this Act.
47 Information must be true, complete and correct
(1) A person required to record, notify, communicate or report any
information under this Act must ensure that any information so recorded, notified
or communicated is true, complete and correct.
(2) A person required to notify, communicate or report any information to
the Director by or under this Act or the regulations must notify the Director
immediately of any change in circumstances which has the effect of rendering
any information previously notified, communicated or reported false, incomplete
or misleading.
(3) A person who contravenes this section commits an offence.
Penalty: A fine not exceeding 2,500 penalty units.
PART 9
SALE, RELEASE AND FORFEITURE OF RETAINED PROPERTY
48 Release of seized goods
(1) The Court, may on application, order the release of any fishing craft
(together with its fishing gear, equipment, stores and cargo), vehicle, aircraft or
other item seized under this Act on receipt of a bond or other form of security.
(2) In determining the value of the bond or other form of security, the Court
must take into consideration –
(a) The total value of the property to be released, including the value
of any catch which might be forfeited;
(b) The total maximum fine or fines provided for the offences charged
or likely to be charged; and
(c) The costs the prosecution would be likely to recover if a conviction
were entered.
49 Sale of perishable goods seized
(1) Any fish or other items of a perishable nature seized under this Act, or
the proceeds of sale of the fish or items, must be held and dealt with under this
Act.
(1).
(2) The Director may sell the fish or other items referred to in subsection
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(3) If the Director, after making all reasonable efforts, is unable to sell the fish or other items referred to in subsection (1), or if the fish or other items are unfit for sale, the Director may dispose of them in such manner as he thinks fit.
50 Seized goods to be held
The Government of Niue must hold anything seized under this Act, and
any bond or security and the proceeds of sale, until –
(a) Any relevant legal proceedings under this Act have been finally
dealt with; or
(b) A decision is made not to start any such proceedings.
51 Court’s power of forfeiture
(1) If a person is convicted of an offence against this Act, the Court, in
addition to any other penalty may order –
(a) That any fishing craft (together with its fishing gear, equipment,
stores and cargo) and any vehicle or aircraft used in the commission
of that offence be forfeited to the Crown; and
(b) That any fish or perishables caught or involved in the commission
of the offence, or the proceeds of sale of the fish or perishables, and
any explosive, poison or other noxious substance used or involved
in the commission of the offence, be forfeited.
(2) Where a fishing craft, vehicle, aircraft or other item seized under this
Act, or any bond, security or the proceeds of a sale, is not forfeited or applied in
the discharge of any fine, order for costs or penalty imposed under this Act, it
must be made available for collection by its owner or his nominee or, in the absence
of those persons, the person who appears to be entitled to it.
(3) If a fishing craft, vehicle, aircraft or other item has been released upon
the lodging of a bond or security, an order for forfeiture operates as an order for
forfeiture of the amount of the bond or security, unless the court for special reasons
fixes a smaller sum.
(4) If a fishing craft, vehicle, aircraft or other item has been released upon
the lodging of a bond or security, the Court may order any defendant convicted
of an offence against this Act involving the fishing craft, vehicle or aircraft or item
or the owner of the fishing craft, vehicle or aircraft or item concerned (whether or
not the owner is a defendant) to pay the difference between the amount of the
bond or security and the total value of the forfeited property as determined under
section 54.
52 Application of bond, security or proceeds of sale
A bond or security, or the proceeds of sale, must be applied in the following
order –
(a) First, in paying the costs associated with the sale (if any);
(b) Secondly, in discharging any forfeiture ordered under section 51;
(c) Thirdly, in paying all fines or penalties imposed under this Act in
connection with the fishing craft, vehicle, aircraft, or item;
(d) Fourthly, in discharging all orders for costs in proceedings under
this Act arising out of relating to the fishing craft, vehicle, aircraft;
(e) Finally, in making such other payments (if any) as the Court
determines.
53 Removal of forfeited goods
If a fishing craft, vehicle, aircraft or other item held or forfeited under this
Act has been unlawfully removed from the custody of the Government of Niue it
is liable to seizure.
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54 Disposal of seized or forfeited goods
(1) A fishing craft, vehicle, aircraft or other item ordered to be forfeited
under this Act may, at the expiry of the time limited for appeal and if no appeal is
lodged, be disposed of in such manner as Cabinet may direct.
(2) A fishing craft, vehicle, aircraft or other item seized under this Act but
not forfeited must be sold and the proceeds disposed of in the manner and the
priority specified in section 52.
55 Liability for loss, damage or deterioration of items in custody
The Government of Niue is not liable for any loss of, damage to or
deterioration in the condition of any fishing craft, vehicle, aircraft or other item
while in the custody of the government of Niue under this Act.
56 Banning order
(1) If a person is convicted of an offence against section 44 (3), the court
may, in addition to imposing any penalty, make an order banning the person for a
period not exceeding 5 years from going on or remaining on board any fishing
craft while the fishing craft is being used for fishing in the fishery waters.
(2) A person who contravenes an order under subsection (1), or the master
of a fishing craft who has on board a person he knows is banned from remaining
on the fishing craft by an order under subsection (1), is guilty of an offence.
Penalty: A fine not exceeding 2,500 penalty units.
57 Removal of item in custody
A person who without lawful authority removes a fishing craft, vehicle,
aircraft or other item held in the custody of the Government of Niue under this
Act is guilty of an offence, whether or not the person knew the fishing craft, vehicle,
aircraft or other item was held in the custody of the Government of Niue.
Penalty: A fine not exceeding 2,500 penalty units or imprisonment for a term not
exceeding 3 months, or both.
PART 10
GENERAL PENALTY AND LIABILITY
58 Liability of master
Where an offence against this Act has been committed by a person on board
or employed on a fishing vessel, the master of the vessel may be charged with the
same offence.
59 Penalties
If a penalty is not specified for an offence under this Act the penalty shall
be a fine not exceeding 2,500 penalty units.
60 Regulations
PART 11
REGULATIONS
(1) Cabinet may make all such regulations as may in the opinion of Cabinet be necessary or expedient for giving effect to this Act and for its due administration. (2) Without limiting the general power conferred by subsection (1),
regulations may be made under this section for all or any of the following –
(a) Providing for the conservation, management, development,
licensing and regulation of fisheries or any particular fishery;
Territorial Sea and Exclusive Economic Zone Act 1996
1585
(b) Licensing, authorisation or registration in respect of any fishing craft or class or category of fishing craft to be used for fishing, related activities or any other purpose under this Act, including the form, issuance requirements, grounds for denial, terms and conditions, and fees, charges, royalties and other form of compensation related to the licensing, authorisation or registration;
(c) Licensing, authorisation or registration in respect of any fisherman or class of fisherman, fishing gear and other equipment or device used for fishing;
(d) The operation of, and conditions and procedures to be observed by any fishing craft while in the fishery waters;
(e) The operation of, and conditions and procedures to be observed by
any other fishing craft which may enter the fishery waters for any
purpose under this Act;
(f) The catching, loading, landing, handling, transshipping,
transporting, possession and disposal of fish;
(g) The import, export, distribution and marketing of fish and fish
products;
(h) The manner in which any fishing gear is to be stowed;
(i) The appointment, powers and duties of authorised officers and
observers;
(j) The duties and procedures to be followed by the master and crew
of any vessel in respect of authorised officers and observers;
(k) Rewards to be paid to any person providing information on the
operations of foreign fishing craft leading to a conviction of an
offence against this Act;
(l) The licensing, control and use of fish aggregating devices and the
rights to the aggregated fish, and prescribing times and the
minimum distances from the device any vessel may fish around it;
(m) Regulating or prohibiting the use of self-contained underwater
breathing apparatus; and any other under-water breathing
apparatus other than a snorkel;
(n) Regulating or prohibiting the use of spear guns or other similar
devices;
(o) Registration of fishing craft and the standards and measures for
the safety of persons on board, and the safety of the fishing craft;
(p) Regulating aquaculture and access to land leased for aquaculture
and to the waters adjacent to the land;
(q) Prescribing the terms and conditions of leases for aquaculture;
(r) Requiring the provision of statistical and other information related
to fisheries;
(s) The control, inspection and conditions of operation for fish
processing establishments;
(t) The prevention of marine pollution, whether originating from a
land based source or by discharge at sea;
(u) The appointment, maintaining of and procedures for agents
appointed to receive and respond to process under this Act;
(v) The implementation of any access or related agreement or other
agreement or arrangement entered into under this Act;
(w) Regulating or prohibiting, either generally or in any specified
fishery –
1586 Niue Laws 2006 Vol 3
(i) The taking of coral and shells;
(ii) The setting of fish fences or nets;
(iii) The taking of aquarium fish; or
(iv) Aquaculture operations;
(v) Prescribing measures for the protection of marine life;
(vi) Regulating or prohibiting fishing of all kinds within any lagoon
or any part of any lagoon, the time or times of year during
which that fishing may occur or is prohibited, and approving,
restricting, or prohibiting the equipment or methods which may
be used in connection with that fishing;
(x) Prescribing offences against the regulations and penalties for the
offences, not exceeding a fine of 2,500 penalty units and, where the
offence is a continuing one, a further fine not exceeding 5 penalty
units for each day that the offence continues;
(y) Regulating for –
(i) The implementation of an access agreement;
(ii) The implementation of any agreement to which the
Government of Niue is a party relating to the establishment of
uniform tests and conditions as between the parties to the
agreement in respect of conservation, management, exploitation
and surveillance, and
(iii) Access to and enforcement measures undertaken within the
fisheries waters of each party;
(z) Giving effect to the following International Conventions upon their
ratification by the Government of Niue and their entry into force
under international law or for Niue, as the case may be –
(i) The United Nations Conventions on the Law of the Sea 1982;
(ii) The Agreement for the Implementation of the Provisions of the
United Nations Convention on the Law of the Sea of 10
December 1982 Relating to the Conservation and Management
of Straddling Fish Stocks and Highly Migratory Fish Stocks,
1995 (the UN Fish Stocks Agreement;
(iii) The Convention on the Conservation and Management of
Highly Migratory Fish Stocks in the Western and Central Pacific
Ocean (the WCPT Convention);
(za) Prescribing the requirements for fishing in areas under national
jurisdiction of a foreign country or on the high seas or in areas subject
to international conservation and management measures in
accordance with international law binding on Niue by vessels
carrying the flag of Niue or nationals of Niue ordinarily resident in
Niue or foreign nationals ordinarily resident in Niue using vessels
carrying the flags of other states;
(zb) Implementing any decisions of international and regional fisheries
management bodies of which Niue is a member or with which Niue
has agreed to cooperate.
61-62 [Spent]
1587
TERRORISM SUPPRESSION AND TRANSNATIONAL CRIMES ACT 2006
2006/280 – 1 December 2006
PART 1 24 Appeal
PRELIMINARY
1 Short title Information
|
2 |
Principal objects |
25 |
Disclosure of information |
|
3 |
Interpretation |
4 Definition of terrorist act PART 5
GENERAL POWERS
|
PART 2 |
26 |
Controlled delivery of property | |
|
SPECIFIED ENTITIES |
27 |
Exchange of information relating to | |
|
5 |
United Nations listed entities to be specified |
terrorist groups and terrorist acts | |
|
entities | |||
|
PART 6 | |||
|
PART 3 |
COUNTER TERRORISM CONVENTION OFFENCES | ||
|
OFFENCES |
Nuclear Material | ||
|
6 |
Financing of terrorism |
28 |
Movement of nuclear material |
|
7 |
Provision of property or services to specified entity |
29 |
Offences relating to nuclear material |
|
8 Dealing with terrorist property Maritime Safety | |||
|
9 |
Harbouring of persons committing terrorist |
30 |
Definition of “ship” |
|
acts |
31 |
Offences | |
|
10 |
Provision of weapons to terrorist groups |
32 |
Arrest and delivery |
|
11 |
Recruitment of person to be members of |
terrorist groups or to participate in terrorist Plastic Explosives
acts 33 Plastic explosives offences
|
PART 4 MANAGEMENT AND FORFEITURE OF PROPERTY OF |
34 |
Terrorist Bombing Terrorist bombing offences | |
|
SPECIFIED ENTITIES | |||
|
Management Transnational Organised Crime | |||
|
12 |
Order to take control of property |
35 |
Participation in organised criminal group |
|
13 |
Notice of order | ||
|
14 |
Variation, revocation, or expiry of order |
PART 7 | |
|
15 |
Appeal |
PEOPLE TRAFFICKING AND SMUGGLING | |
|
16 |
Third parties may apply for relief |
People Trafficking | |
|
17 |
Court may grant relief to third party |
36 |
Offence of trafficking in persons |
|
37 |
Offence of trafficking in children | ||
|
Forfeiture |
38 |
Consent not a defence | |
|
18 |
Certain property excluded from forfeiture |
39 |
Protection of trafficked persons |
|
19 |
Application for forfeiture order | ||
|
20 Making forfeiture order People Smuggling | |||
|
21 |
Effect of forfeiture order |
40 |
Offence of people smuggling |
|
22 |
Protection of third parties |
41 |
Offence to facilitate stay of an unauthorized |
|
23 |
Return of property |
person |
1588 Niue Laws 2006 Vol 3
|
PART 8 | |
|
GENERAL PROVISIONS | |
|
48 |
Jurisdiction |
|
49 |
Liability of body corporate |
|
50 |
Obligation to extradite or prosecute |
|
51 |
Restricted grounds for refusal to extradite |
|
or provide mutual assistance | |
|
52 |
Consent of Attorney-General |
|
53 |
Regulations |
|
SCHEDULE |
To provide for the suppression of terrorism and transnational crimes
1 Short title
PART 1
PRELIMINARY
This is the Terrorism Suppression and Transnational Crimes Act 2006.
2 Principal objects
The principal objects of this Act are to implement the United Nations
Security Council Resolution 1373 and Conventions dealing with terrorism and
transnational organised crime, to prevent terrorists from operating in Niue, and
to prevent persons in Niue from taking part in terrorist activities or supporting
terrorism.
3 Interpretation
In this Act –
“Attorney-General” has the same meaning as in section 2 of the Proceeds
of Crime Act 1998;
“authorised officer””means a constable, customs officer, or immigration
officer;
“Convention country” means a country that is party to a counter terrorism
convention;
“counter terrorism convention” means a Convention listed in the Schedule;
“craft” includes any aircraft, ship, boat, or other machine or vessel used or
capable of being used for the carriage or transportation of persons or
goods, or both, by air or water or over or under water;
“detection agent” means a substance in the table to Part 2 of the Technical
Annex to the Plastic Explosives Convention;
“entity” means a person, group, trust, partnership, fund, or an
unincorporated association or organisation;
“explosive or other lethal device” means –
(a) An explosive, weapon, or device that is designed or has the
capability to cause death, serious bodily injury, or substantial
material damage; or
(b) A weapon or device that is designed or has the capability to cause
death, serious bodily injury, or substantial material damage through
the release, dissemination, or impact of toxic chemicals, biological
agents, toxins, or similar substances or radiation or radioactive
materials;
“financial institution” has the same meaning as in section 3 of the Financial
Transactions Reporting Act 2006;
Terrorism Suppression and Transnational Crimes Act 2006
1589
“Financial Intelligence Unit” means the Financial Intelligence Unit established under Part 5 of the Financial Transactions Reporting Act
2006;
“fixed platform” means an artificial island, installation or structure
permanently attached to the seabed for the purposes of exploration or
exploitation of resources or for other economic purposes;
“forfeiture order” means an order made under section 21;
“international nuclear transport” means the carriage of a consignment of
nuclear material by any means of transportation intended to go beyond
the territory of the country where the shipment originates –
(a) Beginning with the departure from a facility of the shipper in the
country; and
(b) Ending with the arrival at a facility of the receiver within the country
of ultimate destination;
“international organisation” means any organisation of States or
Governments of States or any organ or any agency of any organisation
of that kind;
“military device” includes a shell, bomb, projectile, mine, missile, rocket,
charge, grenade, or perforator, lawfully manufactured exclusively for
military or police purposes;
“Niuean land” has the same meaning as in section 2 of the Niue Amendment
Act (No. 2) 1968;
“nuclear material” means any of the following –
(a) plutonium with an isotopic concentration of not more than 80% in
plutonium-238;
(b) uranium-233;
(c) uranium containing uranium-233, or uranium-235, or both;
(d) uranium with a naturally occurring isotopic concentration, other
than uranium in the form of an ore or ore residue;
(e) a substance containing nuclear material;
“Nuclear Material Convention” means the Convention for the Physical
Protection of Nuclear Material, done at Vienna and New York on 3
March 1980;
“organised criminal group” means a group of at least 3 persons, existing
for a period of time, that acts together with an objective of obtaining
material benefits from the commission of offences that are punishable
by a maximum penalty of at least 4 years imprisonment;
“plastic explosive” means an explosive that is –
(a) formulated with one or more high explosives that, in their pure
form, have a vapour pressure less than 10-4 Pa at a temperature of
25°C; and
(b) formulated with a binder material; and
(c) when mixed, malleable or flexible at normal room temperature;
“Plastic Explosives Convention” means the Convention on the Marking of
Plastic Explosives for the Purposes of Identification, done at Montreal
on 1 March 1991;
“privileged communication” means a confidential communication, whether
made directly or indirectly through an agent between –
(a) A lawyer in his or her professional capacity and another lawyer in
the same capacity; or
(b) A lawyer in his or her professional capacity and his or her client;
and
1590 Niue Laws 2006 Vol 3
to obtain or give legal advice or assistance; but
not for the purpose of committing or assisting the commission of an
illegal or wrongful act;
“property” includes –
(a) assets of every kind, whether corporeal or incorporeal, moveable
or immoveable, tangible or intangible; and
(b) legal documents or instruments in any form, including electronic
or digital, evidencing title to, or interest in, those assets including,
but not limited to, bank credits, traveller ’s cheques, bank cheques,
money orders, shares, securities, bonds, drafts, and letters of credit;
“Rome Convention” means the Convention for the Suppression of Unlawful
Acts against the Safety of Maritime Navigation, adopted at Rome on
10 March, 1988;
“specified entity” means a person or entity that is prescribed under section
5;
“trafficking in persons” means the recruitment, transportation, transfer,
harbouring, or receipt of a person by improper means such as force,
abduction, fraud or coercion for an improper purpose such as forced
or coerced labour, servitude, slavery or sexual exploitation;
“terrorist act” has the meaning given by section 4;
“terrorist group” means –
(a) An entity that has as one of its activities or purposes committing or
facilitating the commission of a terrorist act; or
(b) A group that is a specified entity;
“terrorist property” means –
(a) Property that has been, is being, or is likely to be, used to commit a
terrorist act; or
(b) Property that has been, is being, or is likely to be, used by a terrorist
group; or
(c) Property owned or controlled, or derived or generated from
property owned or controlled, by or on behalf of a specified entity;
“unmarked plastic explosive” means a plastic explosive that –
(a) Does not contain a detection agent; or
(b) At the time of manufacture, does not contain the minimum
concentration level of a detection agent set out in the table to Part 2
of the Technical Annex to the Plastic Explosives Convention; and
“weapon” includes a firearm, chemical, biological, or nuclear weapon.
4
that –
Definition of terrorist act
(1) For the purposes of this Act “terrorist act” means an act or omission
(a) Constitutes an offence within the scope of a counter terrorism convention; or
(b) Is mentioned in subsection (2).
(2) For paragraph (1)(b), the act or omission must –
(a) Involve death or serious bodily injury to a person (other than the
person carrying out the act); or
(b) Involve serious damage to property; or
(c) Endanger a person’s life; or
(d) Create a serious risk to the health or safety of the public or a section
of the public; or
Terrorism Suppression and Transnational Crimes Act 2006 1591
(e) Involve the use of weapons; or
(f) Involve introducing into the environment, distributing, or exposing
the public to any –
(i) dangerous, hazardous, radioactive, or harmful substance; or
(ii) toxic chemical; or
(iii) microbial or other biological agent; or
(g) Involve serious disruption to any system or the provision of services
directly related to essential infrastructure; and
(i) must be intended or, by its nature and context, reasonably be
regarded as being intended –
(A) to intimidate the public or a section of the public; or
(B) to compel a Government or an international organisation
to do, or refrain from doing, any act; and
(ii) must be made for the purpose of advancing a political,
ideological, or religious cause.
(3) However, an act or omission mentioned in subsection (2) does not include
an act or omission that –
(a) Is committed as part of an advocacy, protest, demonstration, dissent,
or industrial action, and is not intended to result in any harm
mentioned in subparagraph (2)(a)(i), (ii), (iii), or (iv); or
(b) Occurs in a situation of armed conflict and is, at the time and in the
place it occurred, in accordance with rules of international law
applicable to the conflict.
PART 2
SPECIFIED ENTITIES
5 United Nations listed entities to be specified entities
(1) For the purposes of this Act, the entities listed from time to time by the
United Nations Security Council as terrorist entities are “specified entities”.
(2) The Minister must, by notice published in the Gazette, give notice of
the list of terrorist entities referred to in subsection (1), and continue to give notice
as and when the United Nations Security Council adds or removes any terrorist
entity from that list.
(3) A list of United Nations terrorist entities prepared and certified by the
Minister is deemed to be prima facie evidence that the list is a correct list of entities
listed by the United Nations Security Council as terrorist entities.
6 Financing of terrorism
PART 3
OFFENCES
(1) A person who provides or collects, by any means, directly or indirectly, any property, intending, knowing, or having reasonable grounds to believe that the property will be used, in full or in part, to carry out a terrorist act, commits and offence and is liable on conviction to imprisonment for a term not exceeding
14 years.
(2) A person commits an offence who provides or collects, by any means,
directly or indirectly, any property intending, knowing, or having reasonable
grounds to believe that they will benefit an entity that the person knows is a
specified entity.
(3) In a prosecution for an offence against subsection (1) or subsection (2),
it is not necessary for the prosecutor to prove that the property collected or provided
were actually used, in full or in part, to carry out a terrorist act.
1592 Niue Laws 2006 Vol 3
7 Provision of property or services to specified entity
(1) A person who, directly or indirectly, knowingly makes available
property, financial, or other related services to, or for the benefit of, a specified
entity commits an offence and is liable on conviction to imprisonment for a term
not exceeding 14 years.
(2) Subsection (1) does not apply if the provision of the property or service
is of a kind that is authorised by a resolution of the United Nations Security Council.
8 Dealing with terrorist property
(1) A person commits an offence and is liable on conviction to imprisonment
for a term not exceeding 14 years, who knowingly –
(a) Deals, directly or indirectly, in any terrorist property; or
(b) Collects or acquires or possesses terrorist property; or
(c) Enters into, or facilitates, directly or indirectly, any transaction in
respect of terrorist property; or
(d) Converts, conceals, or disguises terrorist property.
(2) A person does not commit an offence under paragraph (1)(a), (b), or (c)
if the person –
(a) Tells the Attorney-General, in writing, as soon as the person becomes
aware that the property is terrorist property; and
(b) Acts in accordance with any direction of the Attorney-General for
the property.
9 Harbouring of persons committing terrorist acts
A person commits an offence and is liable on conviction to imprisonment
for a term not exceeding 7 years, who harbours or conceals, or prevents, hinders,
or interferes with the apprehension of any other person knowing or having reason
to believe that the other person –
(a) Has committed, or is planning, or is likely to commit, a terrorist
act; or
(b) Is a member of a specified entity.
10 Provision of weapons to terrorist groups
A person commits an offence and is liable on conviction to imprisonment
for a term not exceeding 7 years, who knowingly offers to provide, or provides, a
weapon to –
(a) A specified entity; or
(b) A member of a specified entity; or
(c) Any other person for use by, or for the benefit of, a specified entity
or a member of a specified entity.
11 Recruitment of person to be members of terrorist groups or to participate in terrorist acts
A person commits an offence is liable on conviction to imprisonment for a term not exceeding 7 years, who knowingly agrees to recruit, or recruits, another person –
(a) To be a member of a terrorist group; or
(b) To participate in the commission of a terrorist act.
Terrorism Suppression and Transnational Crimes Act 2006 1593
PART 4
MANAGEMENT AND FORFEITURE OF PROPERTY OF SPECIFIED ENTITIES
Management
12 Order to take control of property
(1) The Attorney-General may apply to the Court for an order under
subsection (3) for property in Niue if the Attorney-General has reasonable grounds
to believe that the property is terrorist property.
(2) The Court –
(a) May make orders for service of the application; and
(b) May deal with the application ex parte.
(3) If the Court is satisfied that there is evidence to support the application,
the Court may direct the Registrar of the High Court to take custody and control
of the property.
(4) The order –
(a) Must specify the property concerned; and
(b) May be subject to conditions.
(5) A person who has custody and control of the property specified in the
order must allow the Registrar of the High Court to take custody and control of
the property in accordance with the order.
13 Notice of order
(1) Notice of the making of an order under section 12 must be given –
(a) If practicable, as soon as possible to the person who owns or controls
the property if the person or a representative of the person is in
Niue; and
(b) To any other person that the Attorney-General thinks may have an
interest in the property.
(2) Failure to comply with subsection (1) does not affect the validity of the
order.
14 Variation, revocation, or expiry of order
(1) If the Court has made an order under section 12, the Court may, on
application by the Attorney-General or by the person who owns or controls the
property –
(a) Make another order under section 12 varying the conditions of the order or the property that is subject to the order; or
(b) Revoke the order.
(2) If the application is made by the person who owns or controls the
property –
(a) The person must give 14 days notice in writing of the application to the Attorney-General; and
(b) Before deciding on the application, the Court must hear from the
Attorney-General.
(3) The Court must –
(a) If the Court decides that there are reasonable grounds to do so,
revoke the order; or
(b) If the Court decides that there are no reasonable grounds to revoke
the order, refuse the application.
(4) If the Court revokes the order, the Attorney-General must:
(a) Tell the person who owns or controls the property in writing; and
(b) Publish a notice of revocation in the Gazette.
1594 Niue Laws 2006 Vol 3
(5) If not earlier revoked, an order under section 12 about property of a specified entity expires if –
(a) For property of a specified entity, the entity ceases to be a specified entity; or
(b) A forfeiture order is made under section 21 in relation to the property
15 Appeal
The Attorney-General or a person whose property is subject to an order
may, within 21 days of the making of the order, appeal to the Court of Appeal
against a decision made by the Court under this Part.
16 Third parties may apply for relief
(1) A person, other than the person who owns or controls the property,
who claims an interest in the property that is subject to an order under section 12
may apply to the Court for an order under section 17.
(2) The person must give 14 days notice in writing of the application to the
Attorney-General, who is a party to any proceedings on the application.
17 Court may grant relief to third party
(1) Subsection (2) applies if –
(a) A person makes an application under section 16; and
(b) The Court is satisfied that the person’s claim to the interest is valid.
(2) The Court must make an order –
(a) Declaring the nature, extent, and value of the person’s interest in
the property; and
(b) Declaring that the interest is no longer subject to the order under
section 12; and
(c) If the interest is held by the Registrar of the High Court –
(i) directing the Registrar of the High Court to transfer the interest
to the person; or
(ii) declaring that there is payable, by the Registrar of the High
Court to the person, an amount equal to the value of the interest
declared by the Court.
(3) The Court may refuse to make an order if it is satisfied that –
(a) The person was knowingly involved in any way in the carrying
out of the terrorist acts that are the basis of the designation of the
entity as a specified entity, or is an entity that is wholly owned or
effectively controlled, directly or indirectly, by the specified entity;
or
(b) If the person acquired the interest at the time of, or after the
designation of, the entity as a specified entity, the applicant did not
acquire the interest in the property in good faith and for value,
without knowing or having reason to believe that the property was,
at the time of the acquisition, property subject to an order under
section 12.
Forfeiture
18 Certain property excluded from forfeiture
A forfeiture order must not be made against property that is Niuean land
or that is a leasehold right under section 29 of the Land Act 1969.
Terrorism Suppression and Transnational Crimes Act 2006
1595
19 Application for forfeiture order
(1) The Attorney-General may apply to the Court for a forfeiture order
against terrorist property.
(2) The Attorney-General must –
(a) Name as respondents to the application only those persons who
are known to own or control the property that is the subject of the
application; and
(b) Give notice of the application to each respondent in the manner
directed by the Court.
(3) The Court may, at any time before the final determination of the
application, make orders for –
(a) Service of the application on any person whom the Court thinks
has an interest in the property; and
(b) Publication of notice of the application in the Gazette.
(4) Any person who claims an interest in the property may appear and
present evidence at the hearing of the application.
20 Making forfeiture order
(1) If the Court is satisfied, on the balance of probabilities, that the property
that is the subject of the application is terrorist property, the Court must order that
the property be forfeited to the Government of Niue.
(2) If the Court is satisfied that a person mentioned in section 20(2)(a) or
(3)(a) –
(a) Has an interest in the property that is the subject of the application;
and
(b) Has exercised reasonable care to ensure that the property is not
terrorist property; and
(c) Is not a member of a specified entity;
the Court must order that the interest is not affected by the order and declare the
nature and extent of the interest.
(3) If the Court makes a forfeiture order, the Court may give any directions
that are necessary or convenient to give effect to the order.
(4) If the Court refuses to make a forfeiture order, the Court must make an
order that describes the property and that declares that it is not terrorist property.
21 Effect of forfeiture order
(1) If the Court makes a forfeiture order against property (other than
registrable property), the order vests the property absolutely in the Government
of Niue.
(2) If the Court makes an order against registrable property –
(a) The order vests the property in the Government of Niue in equity,
but does not vest it in the Government of Niue at law until the
applicable registration requirements have been complied with; and
(b) The Government of Niue is entitled to be registered as owner of the
property; and
(c) The Attorney-General may do, or authorise the doing of, anything
necessary or convenient to obtain the registration of the Government
of Niue as owner, including the executing of any necessary
instrument; and
(d) the Attorney-General may do anything necessary or convenient to
give notice of, or otherwise protect, the Government of Niue’s
equitable interest in the property; and
1596 Niue Laws 2006 Vol 3
(e) Anything done by the Attorney-General under paragraph (d) is not a dealing for the purposes of paragraph (3)(a).
(3) If the Court makes a forfeiture order against property (including registrable property) –
(a) The property must not, except with leave of the Court and in accordance with any directions of the Court, be disposed of, or otherwise dealt with, by or for the Government of Niue, until 6 months after the forfeiture order was made; and
(b) The property may be disposed of, and the proceeds applied or
otherwise dealt with as the Attorney-General directs, until 6 months
after the forfeiture order was made
22 Protection of third parties
(1) A person who claims an interest in property that has been forfeited
and who has not been given notice under section 19(2)(b) or (3)(a) may apply to
the Court within 6 months after the forfeiture order was made for an order under
subsection (4).
(2) The person must give 14 days notice in writing of the application to the
Attorney-General.
(3) The Attorney-General –
(a) Is a party to the proceedings in an application under subsection (1);
and
(b) May make an application under subsection (1) for a person.
(4) If a person applies to the Court for an order about the person’s interest
in property, the Court must make an order declaring the nature, extent, and value
(as at the time the order is made) of the person’s interest if the Court is satisfied in
accordance with section 20(2).
(5) An appeal lies to the Court of Appeal from an order under subsection
(4).
23 Return of property
(1) The Attorney-General must on application by a person who has
obtained an order under section 22(4), if the period for appeals has expired and
any appeal from that order has been determined or has lapsed –
(a) Arrange for the return of the property, or the part of it to which the
interest of the applicant relates, to the applicant; or
(b) If the interest in the property is no longer vested in the Government
of Niue, pay an amount equal to the value of the interest of the
applicant, as declared in the order, to the applicant.
(2) Subsection (1) does not apply to any property returned, or amount paid,
to the person under section 17.
24 Appeal
The Attorney-General or a person affected by a decision made by the Court
under this Part may appeal to the Court of Appeal against the decision.
25 Disclosure of information
Information
(1) A financial institution must immediately tell the Attorney-General about the existence of any property in its possession or control:
(a) That is owned or controlled, directly or indirectly, by or for a specified entity, including property derived or generated from that property; or
Terrorism Suppression and Transnational Crimes Act 2006
1597
(b) For which there are reasonable grounds to suspect is property of a kind specified in paragraph (a).
(2) The Attorney-General may tell the Financial Intelligence Unit or other appropriate authority of a foreign country about any information it has about any property of the kind mentioned in subsection (1), if the Attorney-General thinks the information would be relevant to the foreign country.
(3) Information may be given under subsection (2) subject to any conditions that the Attorney-General determines.
(4) A financial institution must tell the Financial Intelligence Unit about
every dealing that occurs in the course of its activities and for which there are
reasonable grounds to suspect is related to the commission of a terrorist act.
(5) No civil or criminal proceedings lie against a person for making a
disclosure or report in good faith under subsections (1), (2), or (4).
(6) Nothing in subsection (1) or (4) requires a lawyer to disclose a privileged
communication.
(7) A person who receives information under subsection (1), (2), or (4) must
not disclose the information or its source except –
(a) For the purposes of –
(i) the enforcement of this Act; or
(ii) the detection, investigation, or prosecution of an offence under
this Act; or
(iii) providing assistance under the Mutual Assistance in Criminal
Matters Act 1998; or
(b) In accordance with an order of a Court.
(8) A person who contravenes subsections (1) or (4) commits an offence
and is liable on conviction on indictment to a term of imprisonment not exceeding
7 years.
PART 5
GENERAL POWERS
26 Controlled delivery of property
(1) This section applies to an authorised officer who has reasonable grounds
to believe that a person has committed, is committing, or is about to commit, an offence under this Act.
(2) The authorised officer may allow property, which the authorised officer
reasonably suspects has been, is being, or may be used to commit an offence under
this Act, to enter, leave, or move through Niue for the purpose of gathering evidence
to identify a person or to facilitate a prosecution for the offence.
(3) An authorised officer does not commit an offence under this Act if:
(a) The authorised officer is engaged in the investigation of a suspected
offence under this Act; and
(b) The offence involves property that the authorised officer reasonably
suspects has been, is being, or may be used, to commit an offence
under this Act; and
(c) The authorised officer does not take action that the authorised officer
would otherwise be required to take under this Act for the purpose
of the investigation.
1598 Niue Laws 2006 Vol 3
27 Exchange of information relating to terrorist groups and terrorist acts
The Attorney-General may disclose to the appropriate authority of a foreign
country any information in his or her possession relating to any of the following –
(a) The actions or movements of terrorist groups or persons suspected
of involvement in the commission of terrorist acts; and
(b) The use of forged or falsified travel papers by persons suspected of
involvement in the commission of terrorist acts; and
(c) Traffic in explosives or other lethal devices by terrorist groups or
persons suspected of involvement in the commission of terrorist
acts; and
(d) The use of communication technologies by terrorist groups; and
if the disclosure is not prohibited by any provision of law and will not, in the
Attorney-General’s view, prejudice national security or public safety.
PART 6
COUNTER TERRORISM CONVENTION OFFENCES
Nuclear Material
28 Movement of nuclear material
(1) A person commits an offence who knowingly imports or exports nuclear
material to or from Niue, except with the written permission of Cabinet.
(2) A person commits an offence who knowingly, without written
permission from the Cabinet, transports nuclear material –
(a) Over the territory of Niue; or
(b) Through any of its seaports or airports.
(3) The written permission specified in subsections (1) and (2) may be given
only if the Cabinet has received a written assurance from the person that the
material will, during international nuclear transport, be protected at the levels set
out in the Nuclear Material Convention.
(4) A person who commits an offence against subsections (1) or (2) or who
knowingly makes a false statement or provides a false assurance to the Cabinet
under subsections (1) or (2) is liable on conviction to a term of imprisonment not
exceeding 10 years.
29 Offences relating to nuclear material
A person commits an offence and is liable on conviction to imprisonment
for a term not exceeding 14 years, who intentionally –
(a) Without lawful authority receives, possesses, uses, transfers, alters,
disposes of, or disperses nuclear material in a way that causes, or is
likely to cause, death or serious injury to a person or substantial
damage to property; or
(b) Steals nuclear material; or
(c) Embezzles or fraudulently obtains nuclear material; or
(d) Demands nuclear material by threat, or use of force, or any other
form of intimidation; or
(e) Threatens –
(i) to use nuclear material to cause death or serious injury to any
person or substantial damage to property; or
(ii) to steal nuclear material to compel a person, State, or an
international organisation to do or refrain from doing any act.
Terrorism Suppression and Transnational Crimes Act 2006 1599
30 Definition of “ship”
Maritime Safety
For the purposes of sections 31 and 32 –
(a) “Ship” means a vessel that is not permanently attached to the seabed
including a hovercraft, hydrofoil, submarine or other floating craft,
but does not include a warship, a ship owned or operated by a
State and being used as a naval auxiliary or for customs or police
purposes, or a ship that has been withdrawn from navigation; and
(b) A duty of a master of a ship to arrest, detain, and notify the
appropriate authority in Niue includes any other country that is a
party to the Rome Convention.
31 Offences
(1) A person commits an offence and is liable on conviction to imprisonment
for a term not exceeding 20 years, who unlawfully and intentionally –
(a) Seizes, or exercises control over, a ship or fixed platform by force,
or by threat of force, or by other form of intimidation; or
(b) Commits an act of violence against a person on board a ship or
fixed platform that is likely to endanger the safe navigation of the
ship or safety of the fixed platform; or
(c) Destroys a ship or fixed platform; or
(d) Causes damage to a ship or its cargo or a fixed platform that is
likely to endanger the safe navigation of the ship or safety of the
fixed platform; or
(e) Places, or causes to be placed, on a ship or fixed platform, a device
or substance likely –
(i) for a ship, to destroy the ship or cause damage to the ship or its
cargo that is likely to endanger the safe navigation of the ship;
or
(ii) for a fixed platform, to destroy the fixed platform or to endanger
its safety; or
(f) Destroys or seriously damages maritime navigational facilities or
seriously interferes with their operation in a way that is likely to
endanger the safe navigation of a ship; or
(g) Communicates information that he or she knows to be false and
that endangers the safe navigation of a ship; or
(h) Injures or kills a person in connection with the commission, or
attempted commission, of an offence set out in paragraphs (a), (b),
(c), (d), (e), (f), or (g).
(2) A person commits an offence and is liable to conviction on indictment
to a term of imprisonment not exceeding 14 years who, with the intention of
compelling another person to do or to refrain from doing any act, threatens to
commit an offence mentioned in subsection (1)(b), (c), (d), or (f) in relation to a
ship or fixed platform, if the threat is likely to endanger the safety of the ship or
fixed platform.
32 Arrest and delivery
(1) The master of a ship registered in Niue who has reasonable grounds to
believe that a person has committed an offence under section 31 against, or on
board, any ship may –
(a) Arrest and detain the person; and
(b) Deliver the person to the appropriate authorities in any other
Convention country.
1600 Niue Laws 2006 Vol 3
(2) The master of the ship must –
(a) Notify the authorities in the other Convention country before
delivering the person; and
(b) Give to the authorities evidence in his or her possession that the
person has committed the offence.
(3) If the person is delivered to a constable –
(a) The constable must take the person into custody unless he or she
has reasonable grounds to believe that the person has not committed
the offence; and
(b) If the constable refuses to take the person into custody, give reasons
for the refusal.
(4) A master of a ship who contravenes subsection (2), commits an offence
and is liable on conviction to a term of imprisonment not exceeding 7 years.
Plastic Explosives
33 Plastic explosives offences
(1) A person commits an offence who manufactures plastic explosives
knowing that they are unmarked.
(2) A person commits an offence who possesses or transports unmarked
plastic explosives knowing that they are unmarked.
(3) A person commits an offence who imports or exports unmarked plastic
explosives.
(4) It is not an offence under subsections (1) or (2) if –
(a) The person manufactures or holds unmarked explosives in a
quantity approved, in writing by Cabinet, solely for the use –
(i) in research, development, or testing of new or modified
explosives; or
(ii) in training in explosives detection or in the development or
testing of explosives detection equipment; or
(iii) for forensic science purposes; or
(b) The unmarked plastic explosives are destined to be, and are
incorporated as, an integral part of duly authorised military devices
in Niue within 3 years after the coming into force of the Plastic
Explosives Convention in Niue.
(5) It is not an offence under subsection (2) if the person possesses or
transports unmarked plastic explosives in a quantity, approved in writing by
Cabinet, solely for the use mentioned in subsection (4).
(6) A person who commits an offence under this section is liable on
conviction to a term of imprisonment not exceeding 7 years.
Terrorist Bombing
34 Terrorist bombing offences
(1) Subsection (2) applies to an action that is intended by a person –
(a) To cause death or serious bodily injury; or
(b) To cause extensive damage to a place mentioned in subsection (2)(a)
or (b), a facility mentioned in subsection (2)(c), or a facility
mentioned in subsection (2)(d), if the damage results in, or is likely
to result in, major economic loss.
(2) A person commits an offence and is liable on conviction to a term of
imprisonment not exceeding 14 years, who unlawfully and intentionally delivers,
places, discharges, or detonates an explosive or other lethal device in, into, or
against –
Terrorism Suppression and Transnational Crimes Act 2006 1601
(a) A part of a building, land, street, waterway or other location that is accessible or open to members of the public, whether continuously or occasionally, including a commercial, business, cultural, historical, educational, religious, governmental, entertainment, recreational, or similar place; or
(b) A facility or conveyance that is used or occupied, in connection
with his or her official duties, by –
(i) a representative of any Government; or
(ii) the Head of State of any country; or
(iii) the Prime Minister or a Minister of any country; or
(iv) a member of the legislature of any country; or
(v) a Judge of any country; or
(vi) a public official or employee of a Government or public
authority or an inter-governmental organisation; or
(c) A facility, conveyance, or instrumentality, whether public or
privately owned, that is used in or for a publicly available service
for the transportation of persons or cargo; or
(d) A publicly or privately owned facility providing or distributing
services for the benefit of the public, such as water, energy, fuel, or
communications.
Transnational Organised Crime
35 Participation in organised criminal group
A person commits an offence and is liable on conviction to imprisonment
for a term not exceeding 7 years, who participates (whether as a member, associate
member, or prospective member) in an organised criminal group, knowing that it
is an organised criminal group; and –
(a) Knowing that his or her participation contributes to the occurrence
of criminal activity; or
(b) Reckless as to whether his or her participation contributes to the
occurrence of criminal activity.
PART 7
PEOPLE TRAFFICKING AND SMUGGLING
People Trafficking
36 Offence of trafficking in persons
A person commits an offence and is liable on conviction to a term of
imprisonment for a term not exceeding 14 years, who engages in trafficking in
persons or is involved in the arranging of trafficking of persons knowing that the
person’s entry into Niue or any other country is or was arranged by means not in
accordance with the law of Niue or that other country.
37 Offence of trafficking in children
A person commits an offence and is liable on conviction to a term of
imprisonment for a term not exceeding 20 years, who intentionally engages in
trafficking in a person who is a child or is involved in the arranging of trafficking
in a person who is a child, regardless of whether the child’s entry into Niue or any
other country is or was arranged by means not in accordance with the law of Niue
or that other country.
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38 Consent not a defence
It shall not be a defence to any prosecution under section 36 or section 37 –
(a) That the trafficked person consented to the intended exploitation;
or
(b) That the intended exploitation did not occur.
39 Protection for trafficked persons
(1) A trafficked person is not liable to prosecution for
(a) The act of trafficking in persons or being a party to an offence of
trafficking in persons; or
(b) The trafficked person’s illegal entry into Niue in connection with
the act of trafficking in persons if Niue is the receiving country; or
(c) The trafficked person’s period of unlawful residence in Niue after
being trafficked, if Niue is the receiving country; or
(d) The trafficked person’s procurement or possession of any fraudulent
travel or identity documents that the person obtained, or with which
the trafficked person was supplied, for the purpose of entering the
receiving country in connection with the act of trafficking in persons.
(2) Subsection (1) shall not prevent the removal from Niue of a trafficked
person in accordance with Entry, Residence and Departure Act 1985.
People Smuggling
40 Offence of people smuggling
(1) A person who, in order to obtain a material benefit, engages in people
smuggling either knowing or being reckless as to the fact that the entry of the
person being or to be, smuggled into the country is illegal commits an offence and
is liable on conviction to a term of imprisonment not exceeding 14 years.
(2) Subsection (1) applies whether or not the person being smuggled enters
or arrives in the receiving country.
41 Offence to facilitate stay of an unauthorised person
A person who knowingly facilitates the continued presence of an
unauthorised person in a receiving country in order to obtain a material benefit
commits an offence and is liable on conviction to a term of imprisonment not
exceeding 14 years.
42 Aggravated offences
(1) A person commits an aggravated offence of any of the offences
mentioned in sections 40 or 41 who commits that offence in 1 or more of the
following circumstances –
(a) The unauthorised person is subjected to torture or to any other cruel,
inhuman or degrading treatment (including exploitation);
(b) The life or safety of the person being smuggled is, or is likely to be,
endangered.
(2) A person who commits an offence against subsection (1) is liable on
conviction to a term of imprisonment not exceeding 20 years.
43 Protection for smuggled persons
(1) An unauthorised person is not liable to prosecution for an offence
against sections 40 and 41, by reason only of the fact that the person is the object of
the following conduct –
Terrorism Suppression and Transnational Crimes Act 2006 1603
(a) People smuggling;
(b) When committed for the purpose of enabling people smuggling,
an offence against section 46;
(c) An offence against section 41.
(2) For the avoidance of doubt, nothing in subsection (1) prevents
proceedings being taken against an unauthorised person for an act or omission
that constitutes an offence under any other law.
44 Boarding, search and detention of craft
(1) This section applies to a craft that is a ship, boat or other machine or
vessel used or capable of being used for the carriage of persons by water or over
water, except for a foreign warship.
(2) An authorised officer may stop and board the craft within Niue if the
authorised officer has reasonable grounds to believe the craft –
(a) Is being used to commit an offence against section 40; and
(b) The craft is in –
(i) Niue; or
(ii) the contiguous zone of Niue.
(3) The authorised officer may, when reasonably necessary for the exercise
of his or her functions in connection with an offence against section 40 –
(a) Direct the craft to stay where it is, or direct it to be taken to a suitable
place in Niue, for the purpose of search; and
(b) Search and detain the craft, anyone on it and anything on it; and
(c) Question any person on board the craft; and
(d) Require the production of any documents relating to the craft or
any travel or identity documents of a person on the craft; and
(e) Take a copy of any documents produced; and
(f) Seize and detain anything found on the craft that appears to him or
her to be evidence of an offence against this Part; and
(g) Remain on the craft for such period as is reasonably necessary for
the purpose of boarding, searching and directing the craft or
carrying out an investigation for an offence against section 40.
(4) If the craft fails to stop at the request of the authorised officer, the officer
may pursue it into international waters and take any action that is reasonable
necessary to stop the craft and enable it to be boarded (other than in the territorial
sea of another country).
(5) The authorised officer may require the person in charge of the craft, a
member of the crew or any person on board to take any action that may be directed
by the officer for paragraph (3)(a).
(6) The person in charge of the craft must give any authorised officer who
remains on board the craft proper and sufficient food and suitable accommodation
without charge.
(7) Any person who fails to comply with a direction of an authorised officer
under this section commits an offence and is liable on conviction on indictment to
a fine not exceeding 500 penalty units or a term of imprisonment not exceeding 5
years, or both.
Exploitation
45 Exploitation of people not legally entitled to work
(1) An employer commits an offence who allows an unlawful employee to
undertake employment in the employer ’s service and takes any action with the
intention of preventing or hindering the employee from –
1604 Niue Laws 2006 Vol 3
(a) Leaving Niue; or
(b) Ascertaining or seeking that person’s entitlement under the law of
Niue; or
(c) Disclosing to any person the circumstances of that person’s
employment by the employer.
(2) Without limiting the generality of subsection (1), the following are
examples of actions of the kind mentioned in that subsection –
(a) Taking or retaining possession or control of a person’s passport,
any other travel or identity document, or travel tickets;
(b) Preventing or hindering a person from –
(i) having access to a telephone; or
(ii) using a telephone; or
(ii) using a telephone privately; or
(iv) leaving premises; or
(v) leaving premises unaccompanied;
(c) Preventing or hindering a authorised officer from entering or having
access to any place or premises to which the person is entitled to
have access under any law.
(3) An employer who commits an offence under this section is liable to a
fine not exceeding 500 penalty units or to a term of imprisonment not exceeding 5
years, or both.
General
46 Offence relating to fraudulent travel or identity documents
A person commits an offence, and is liable on conviction to a fine not
exceeding 500 penalty units or to a term of imprisonment not exceeding 5 years or
both, who knowingly and in order to obtain a material benefit –
(a) Produces a fraudulent travel or identity document; or
(b) Procures, provides or possesses a fraudulent travel or identity
document.
47 Obligation on commercial carriers
(1) A commercial carrier commits an offence and is liable on conviction to
a fine not exceeding 500 penalty units, who transports a person into Niue if, on
entry into the Niue, the person does not have the travel documents required for
lawful entry.
(2) A commercial carrier is not guilty of an offence under subsection (1)
if –
(a) The commercial carrier had reasonable grounds to believe that the documents that the person has are the travel documents required for lawful entry of that person into Niue; or
(b) The person possessed the travel documents required for lawful entry into Niue when that person boarded, or last boarded, the means of transport to travel to Niue; or
(c) Entry into Niue occurred only because of illness of or injury to a person on board, emergency, stress of weather or other circumstances beyond the control of the commercial carrier.
(3) A commercial carrier that commits an offence under this section is liable
to pay the costs of the person’s detention in, and removal from Niue.
Terrorism Suppression and Transnational Crimes Act 2006
1605
48 Jurisdiction
PART 8
GENERAL PROVISIONS
Proceedings may be brought for an offence under this Act – (a) If the act or omission –
(i) is committed in Niue; or
(ii) is committed on board a ship or aircraft registered in Niue; or
(iii) is committed outside Niue by a person who is now in Niue; or
(b) Whether or not the act or omission constituting the offence is
committed in or outside Niue, if the act or omission –
(i) is committed by a Niuean or permanent resident of Niue or a
citizen of any country who is ordinarily resident in Niue; or
(ii) is committed in order to compel the Government of Niue to
do, or to abstain from doing, any act; or
(iii) is committed against a Niuean or a permanent resident of Niue;
or
(iv) is committed by a person who is, after the commission of the
offence, present in Niue; or
(v) is intended to be committed in Niue; or
(vi) originates in, or transits, Niue.
49 Liability of body corporate
(1) This Act applies to a body corporate in the same way as it applies to an
individual; and a body corporate may be found guilty of any of the offences set
out in this Act, in addition to the liability of any person for the same offence.
(2) For an offence under this Act, the conduct or state of mind of an
employee, agent, or officer of a body corporate is taken to be attributed to the
body corporate if that person is acting –
(a) Within the scope of the person’s employment; or
(b) Within the scope of the person’s actual or apparent authority; or
(c) With the consent or agreement (express or implied) of a director,
servant, or agent of a body corporate, and giving that consent is
within the actual or apparent authority of the director, servant, or
agent.
(3) A reference in this section to the “state of mind of a person” includes
the person’s knowledge, intention, opinion, belief, or purpose, and the person’s
reasons for that intentions, opinion, belief, or purpose.
50 Obligation to extradite or prosecute
(1) If the Attorney-General refuses a request from another country to
extradite a person under the Extradition Act 1965, and the extradition request
relates to an act or omission that may constitute an offence listed in subsection (2),
the Attorney-General must submit the matter to the police.
(2) The offences referred to in subsection (1) are those set out in sections 6
to 11, 28, 29, 31, 33, 34, and 35.
51 Restricted grounds for refusal to extradite or provide mutual assistance (1) Notwithstanding the Extradition Act 1965 or the Mutual Assistance in Criminal Matters Act 1998, an offence under this Act or any other Act, where the act or omission constituting the offence also constitutes a terrorist act, is taken, for
the purposes of extradition and mutual assistance, not to be –
1606 Niue Laws 2006 Vol 3
(a) An offence of a political character or an offence connected with a political offence or an offence inspired by a political motive; or
(b) A fiscal offence.
(2) Notwithstanding the Mutual Assistance in Criminal Matters Act 1998,
no request for mutual assistance in relation to an offence under this Act may be
declined solely on the basis of bank secrecy.
52 Consent of Attorney-General
(1) Proceedings for any offence under this Act for which jurisdiction is
claimed under section 36(1)(a)(ii) for an offence committed on board a ship
elsewhere than in Niue or for any other offence committed outside Niue may
only be instituted with the consent of the Attorney-General.
(2) Subsection (1) does not prevent the arrest, or the issue of a warrant for
the arrest, of any person for any offence, or the remanding in custody or on bail of
any person charged with any offence.
53 Regulations
Cabinet may make such regulations as are necessary or convenient for the
purposes of this Act.
–––––––––––––––––––
SCHEDULE
Section 4(1)
COUNTER TERRORISM CONVENTIONS
1 Convention on Offences and certain Other Acts committed on Board Aircraft,
done at Tokyo on 14 September 1963.
2 Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague
on 16 December 1970.
3 Convention for the Suppression of Unlawful Acts Against the Safety of Civil
Aviation, done at Montreal on 23 September 1971.
4 Convention on the Prevention and Punishment of Crimes Against Internationally
Protected Persons, including Diplomatic Agents, adopted by the General Assembly of
the United Nations on 14 December 1973.
5 International Convention against the taking of Hostages, adopted by the General
Assembly of the United Nations on 17 December 1979.
6 Convention on the Physical Protection of Nuclear Material, done at Vienna and
New York on 3 March 1980.
7 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving
International Civil Aviation, supplementary to the Convention for the Suppression of
Unlawful Acts Against the Safety of Civil Aviation, done at Montreal on 24 February
1988.
8 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation, done at Rome on 10 March 1988.
9 Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms
located on the Continental Shelf, done at Rome on 10 March 1988.
10 Convention on the Marking of Plastic Explosives for the Purposes of Detection,
done at Montreal on 1 March 1991.
11 International Convention for the Suppression of Terrorist Bombings, adopted by
the General Assembly of the United Nations on 15 December 1997.
12 International Convention for the Suppression of the Financing of Terrorism,
adopted by the General Assembly of the United Nations on 9 December 1999.
1607
TOURIST AUTHORITY ACT 1995
1995/200 – 2 November 1995
15 Powers of the Authority
16 Authority to give effect to directions of
Government
PART 3
FINANCIAL
17 Remuneration and allowances of members
of the Board
18 Application of fees
19 Niue Tourist Authority Account
20 Preparation of estimates
21 Authorisation of expenditure
22 Annual reports and accounts
PART 4
MISCELLANEOUS
23 Breach of Act or regulations
24 Regulations
25-26 [Spent]
To reconstitute the Tourist Authority Board as a Tourist Authority
1 Short title
This is the Tourist Authority Act 1995.
2 Interpretation
In this Act –
“accommodation premises” means and includes hotels, motels, guesthouse,
boarding houses and all land, buildings and premises used wholly or
partly, or intended to be used wholly or partly to provide lodgings for
tourists;
“appointed member” means any member of the Board appointed under
section 4(2)(a);
“Authority” means the Tourist Authority established under section 3;
“Board” means the Board of Directors of the Authority established under
section 12;
“Director” means the Director appointed under section 12;
“Member” means a member of the Board;
“Minister” means the Minister of Tourism;
1608 Niue Laws 2006 Vol 3
“tourism” means the provision of scenic attractions, recreational activities and services that attract tourists;
“tourism industry” means and includes, not only accommodation, but tour operators, inbound operators, travel agents and airline agents.
PART 1
TOURIST AUTHORITY
3 Establishment of Tourist Authority
(1) There shall continue to be an Authority to be called the Tourist Authority.
(2) The Authority shall be a body corporate with perpetual succession and
a common seal capable of suing and being sued and of doing and suffering all
such acts and things as bodies corporate may lawfully do and suffer.
4 Board of Directors
(1) There shall be a Board of Directors of the Authority which shall, subject
to this Act, have overall control of the Authority.
(2) The Board shall consist of –
(a) Six appointed members, being persons from among those of
competence and experience in –
(i) The tourism industry; and
(ii) Private commercial interests and having personal attributes,
qualifications and experience as will enable those persons to
represent the tourist industry as well as the general community
interests;
(b) The Financial Secretary or an official of the Treasury nominated by
the Financial Secretary who shall be an ex-officio member;
(c) The Director who shall be an ex officio member with no voting
rights.
(3) The appointed members of the Board shall be appointed by Cabinet.
Cabinet shall from among those appointed members appoint one as Chairperson
of the Board.
(4) The powers of the Board shall not be affected by any extraordinary
vacancy in its membership.
5 Term of office of members of Authority
(1) Except as otherwise provided in this Act every appointed member shall
hold office for a term of 3 years but may be reappointed.
(2) Notwithstanding anything in this Act, every appointed member whose
office is terminated by effluxion of time shall continue to hold office until his
successor comes into office.
6 Extraordinary vacancies
(1) An appointed member of the Board may resign his office at any time
by written notice given to the Minister.
(2) An appointed member may at any time be removed from office by
Cabinet for disability, bankruptcy, neglect of duty or misconduct proved to the
satisfaction of Cabinet.
(3) If an appointed member dies or resigns his office by written notice given
to the Minister or is removed from office the vacancy shall be deemed to be an
extraordinary vacancy.
(4) In the case of an extraordinary vacancy, Cabinet may subject to the
criteria for the composition of the Board set forth in section 4(2) appoint any person
to fill the vacancy.
Tourist Authority Act 1995
1609
(5) Any appointed member appointed to fill an extraordinary vacancy shall hold office only for the unexpired portion of the term of office of his predecessor, but may be reappointed.
7 Meetings of Board
(1) The first meeting of the Board shall be held on a day to be appointed by
the Chairperson.
(2) Subsequent meetings shall be held at such times and places as the Board
or the Chairperson may appoint.
(3) The Chairperson or any 2 members may at any time call a special
meeting of the Board with 3 days notice.
(4) At all meetings a majority of the members for the time being of the
Board shall form a quorum.
(5) The Chairperson shall preside at all meetings at which he is present. In
the absence of the Chairperson from any meeting, the members present shall
appoint one of their number to be Chairperson of that meeting.
(6) At any meeting the Chairperson shall have a deliberative vote and in
the case of an equality of votes shall also have a casting vote.
(7) All questions arising at any meeting shall be decided by a majority of
the valid votes of members recorded on it.
(8) The Minister should request the right to attend and address any meeting
of the Board, but not to be present during voting.
(9) Subject to this Act and of any regulations made under it, the Board
may regulate its procedure in such manner as it thinks fit.
8 Minutes of meetings
(1) The Board shall cause minutes to be kept in a book provided for the
purpose, of all resolutions and proceedings of its meetings.
(2) The minutes shall be signed by the Chairperson at the next meeting.
(3) A copy of the minutes of every meeting shall be furnished to every member.
9 Disclosure of conflicting interest
(1) Any member who has a direct or indirect pecuniary interest in any
matter before the Board or any committee of it (apart from any interest in common
with the public or with any section of the public or with any section of the tourist
industry affected by the matter in question) shall as soon as possible after the
relevant facts have come to his notice, disclose the nature of his interest at a meeting
of the Board.
(2) A disclosure under this section shall be recorded in the minutes of the
meeting of the Board and the member shall not take part after the disclosure in
any deliberation or decisions relating to the matter, but shall be counted as present
for the purpose of forming a quorum of the Board for any such deliberation or
decision.
10 Board may refer matters for investigation
The Board may appoint one or more of its members or any other qualified
person to investigate and report to the Board on such matters as are referred to
him or them by the Board for the purpose of the proper exercise of its powers or
functions under this Act.
1610 Niue Laws 2006 Vol 3
11 Delegation of powers of Authority
(1) The Authority may appoint a committee or committees consisting of 2
or more persons being members of the Board or officers of the Authority and may
delegate to any such committee any of the powers or functions of the Authority
except for the power of delegation conferred by this section.
(2) The Authority may delegate any of its powers to any member of the
Board or officer or employee of the Authority except for the power of delegation
conferred by this section.
(3) Subject to any general or special directions given or conditions imposed
by the Authority or committee or person to whom any powers are delegated under
this section the committee or person to whom any powers are so delegated may
exercise those powers in the same manner and with the same effect as if they had
been conferred directly by this Act and not by delegation.
(4) Every committee or person purporting to act under any delegation
under this section shall be presumed to be acting under the terms of the delegation
in the absence of proof to the contrary.
(5) Any delegation under this section may be made to a specified person
or to persons of a specified class or may be made to the holder for the time being
of a specified office or appointment or to the holders of officer or appointments of
a specified class.
(6) Any delegation under this section may be revoked at any time.
(7) The delegation of any power by the Authority shall not prevent the
exercise of that power by the Authority.
12 Director and other employees
(1) The Authority shall appoint a Director of Tourism who shall be the
Chief Executive Officer of the Authority.
(2) The Director in consultation with the Authority may appoint such other
officers and employees including acting or temporary or casual officers and
employees as it thinks necessary for the efficient exercise of its functions and
powers.
(3) Any person in the service of the Crown may be appointed to be an
officer or employee of the Authority but no such person shall be entitled to hold
office concurrently as an officer or employee of the Authority and as a servant of
the Crown except in the case of a person subject to the Public Service Commission,
with the consent of the Commission.
(4) Subject to this Act the Authority may employ a Director of Tourism
and other employees upon such terms and conditions and at such salaries and
allowances as it thinks fit and may at any time remove any officer or employee
from his office or employment.
(5) No person by reason only of being a director or employee of the
Authority shall be deemed to be employed in the Public Service except that for
the purpose of a government superannuation service as an officer or employee
appointed under this Act shall be deemed to be Government Service.
PART 2
OBJECTIVES, FUNCTIONS AND POWERS
13 Objectives of the Authority
The primary objective of the Authority shall be to encourage and promote
the development of tourism in Niue in a manner which is appropriate to the
interests of developing Niue as a tourist destination having regard also to the
community at large and the objectives of Government as set out in the Niue
Strategic Plan as promulgated from time to time.
Tourist Authority Act 1995
1611
14 Functions of Authority
In pursuance of its objective the Authority shall have the following
functions –
(a) As to policy and planning –
(i) To recommend for Cabinet approval national and regional
policy for the development, promotion, regulation and control
of tourism;
(ii) To assist, and advise the Minister, in the implementation of
national and regional tourism policy;
(iii) To co-ordinate policy and planning for the development and
promotion of tourism;
(iv) To undertake such planning and research (not being undertaken
by any other agency or department of the Government) as may
be required to provide the Minister with advice and guidance
on matters of policy and planning affecting the tourist industry;
(v) To undertake such planning and research as may be required
to enable the Authority to discharge any other of its functions
under this section;
(b) As to marketing and promotion –
(i) To promote and encourage travel by the public to Niue under
policies as established;
(ii) To promote and encourage the development of those tourism
facilities, attractions and services which are consistent with the
requirements of the tourist industry from time to time;
(iii) To provide and co-ordinate national destination and other
broad-spectrum marketing services as may be required to
ensure orderly promotion of tourism in overseas markets;
(iv) To provide advisory and guidance services for travel agents,
tour operators and others engaged in the business of
encouraging tourists to visit Niue;
(v) To establish, maintain, develop and operate publicity, public
relations and information services in respect of travel to Niue;
(c) As to cultural and community issues –
(i) To establish and promote structures and procedures to facilitate
dialogue and consultation on matters affecting tourism between
and among the Government, those involved in the tourism
industry in Niue and the general public of Niue;
(ii) To identify and promote those aspects of Niuean culture and
entertainment of interest to tourists;
(iii) To advise and inform the Minister as required of matters of
particular community concern;
(iv) To regulate and control in conjunction with other departments
and agencies of the Government the use, development and
maintenance of scenic attractions and recreational facilities,
standards and licensing of accommodation and inbound
operators in Niue;
(v) Tourism projects should be subject to environmental impact
assessments and authority should have regard to the Niue
environment management strategy and other Government
policies concerning the environment;
1612 Niue Laws 2006 Vol 3
(d) As to education and training –
(i) To promote and co-ordinate with other departments and
agencies of the Government an ongoing programme of
education and training to improve levels of participation by
Niueans and permanent residents of Niue in the tourist
industry;
(ii) To establish and promote a continuing programme of
community education as to the benefits and advantages of
tourism;
(e) As to general administration and other matters –
(i) To hold such inquiries and gather such information as will
enable it to determine the requirements of tourists and the
public as to the provision of services of all kinds and other
amenities on premises licensed under this Act;
(ii) To conduct enquiries into any matters at the request of or with
the approval of the Minister and to make recommendations to
the Minister in respect of them;
(iii) To do such other acts and things as the Authority may be
required or authorised to do by this or any other Act or as may
in the opinion of the Authority be necessary or desirable for
the purposes of this Act.
15 Powers of the Authority
The Authority shall have all the powers reasonably necessary for the
effective performance of its functions –
(a) Subject to the provisions of any enactment applicable to the
Authority, fix regulate or make such charges as it determines for
the use of service, works, recreation grounds, equipment, apparatus,
attractions, amenities or facilities provided, maintained, controlled,
or operated by the Authority;
(b) Contract for the execution or provision by any person of any work
or services authorised by this or any other Act to be executed or
provided by the Authority in such manner and on and subject to
such terms and conditions as the Authority thinks fit;
(c) For the purpose of promoting and encouraging tourist traffic to
Niue, act in combination or association with any person or body of
persons whether incorporated or not and whether in Niue or
elsewhere or any Government department or agency that may be
engaged, concerned or interested in the promotion of tourist traffic
from overseas and contribute to the expenses involved in any such
combination or association;
(d) To make recommendations to the Minister to regulate on standards
to be complied with by hotels, accommodation, premises,
restaurants, scenic attractions and recreational facilities together
with services and amenities, in connection with them.
16 Authority to give effect to directions of Government
(1) In the exercise of its functions and powers the Authority shall have
regard to any general policy directions that may be made by Cabinet and conveyed
to it by the Minister in respect of any functions or activities of the Authority and
shall give effect to any decision of the Government in relation to it conveyed to
the Authority in writing by the Minister.
Tourist Authority Act 1995
1613
(2) A copy of every written directive from the Cabinet shall be included in the annual report required to be made by the Authority to Cabinet under section
22.
PART 3
FINANCIAL
17 Remuneration and allowances of members of the Board
The members of the Board shall be paid out of the Niue Tourist Authority
account.
18 Application of fees
All fees and other moneys paid under this Act shall be paid into the Niue
Tourist Authority account and all expenses incurred in respect of the administration
of this Act and regulations under it shall be paid out of such moneys as may be
appropriated by the Assembly.
19 Niue Tourist Authority Account
(1) The Authority shall keep such bank account or accounts as may be
approved by the Board.
(2) No money shall be withdrawn from any bank account except by cheque
or other instrument (not being a promissory note or bill) signed by such person or
persons in such manner as the Board may determine.
20 Preparation of estimates
(1) The Authority shall in each year prepare and submit annual estimates
of revenue and expenditure, as the Minister responsible for finance directs, covering
the operations of the Authority in the exercise of its powers and functions.
(2) The estimates may in respect of any undertaking of the Authority
provide for finance by way of loans or overdraft the terms and conditions of which
shall be subject to the approval of Cabinet.
(3) The Minister shall submit the estimates, with such recommendations
to Cabinet for approval.
(4) A copy of the estimates as approved by Cabinet shall be attached to the
estimates prepared under section 14 of the Public Revenues Act 1959 as an
appendix.
21 Authorisation of expenditure
(1) The Board may authorise expenditure in accordance with the estimates
approved by the Assembly and as between items of expenditure in the approved
estimates may, with the approval of the Cabinet exercise a power of virement to
an extent not exceeding 20 per cent of the item to which funds are transferred.
(2) The Cabinet may authorise expenditure in excess of the total provided
for in the estimates to the extent that receipts of the Authority exceed the amount
estimated.
22 Annual report and accounts
(1) The Authority shall, as soon as practicable after 30 June in each year,
furnish a report covering its activities for the year ending on 30 June, including
financial statements showing estimates and actual expenditure and receipts
together with such accounts as are appropriate to the nature of its financial
operations.
1614 Niue Laws 2006 Vol 3
(2) The financial statements required to be furnished to the Minister under subsection (1) shall be in such form as may be directed by the Minister responsible for finance and shall be completed and available no later than 2 months after the end of the financial year to which they relate.
PART 4
MISCELLANEOUS
23 Breach of Act or regulations
Every person who commits or attempts to commit or is concerned in
committing or attempting to commit a breach or violation of this Act or of any
regulations made under this Act for which no special penalty is provided is liable
for every offence to a fine not exceeding 10 penalty units and if the breach or
violation is a continuing one to a further fine not exceeding 1 penalty unit for
every day or part of a day during which the offence continues.
24 Regulations
(1) The Cabinet may make all such regulations as may be necessary or
expedient for giving effect to this Act and for the due administration of it.
(2) All such regulations shall be laid before the Assembly within 28 days
after the making of it if the Assembly is then in session, and, if not, shall be laid
before the Assembly at the commencement of the next ensuing session.
25-26 [Spent]
1615
TRANSPORT ACT 1965
1965/30 – 1 July 1965
1 Short title
2 –
PART 1
PRELIMINARY
30 Overtaking involving risk prohibited
31 Right-hand turn at intersection
32 Driver of vehicle to yield the right of way
33 Unsafe vehicles
3 Interpretation
PART 2
34 Dangerous riding on vehicles
35 Motor driver ’s visible signals
36 Parking of motor vehicles
REGISTRATION AND ANNUAL LICENCES
4 Use of motor vehicles prohibited unless
Part 2 complied with
5 Penalty for contravention
6 Registrar and Register
7 Application for registration
8 Pneumatic tyres and right hand drive
required
9 Procedure for registration
10 Issue and use of registration plates
11 Registration in force subject to cancellation
12 Registration fees
13 Duty of owner to obtain annual licence
14 Application for annual licence
15 Fees for annual licence
16 Issue of annual licence and duty to produce
licence on demand
17 Cancellation of registration
18 Change of ownership
PART 3
LICENSING OF MOTOR VEHICLES
19 Unlicensed persons not to drive
20 Application for driver ’s licence
20A Prohibitions relating to driving licences
21 Fees for driver ’s licence
22 Procedure of licensing
23 Fees for driving test
24 Expiration and renewal of licence
25 L plates
26 Charge for registration plates
27 Driver to produce his licence on demand
PART 4
RULES OF THE ROAD
28 Vehicles to keep to the left
29 Driver of vehicle to give audible signal
when overtaking
37 Towing of motor vehicles and leading of
animals
38 Number of persons on motor cycles and
power cycles and requirements as to safety
helmets
38A Safety helmets for motorcyclists
PART 5
RECKLESS OR INTOXICATED DRIVERS
39 Penalties for causing death or bodily injury
through reckless or negligent driving or
through driving while intoxicated
40 Penalties for reckless or negligent driving
or driving while intoxicated
41 Constable may take steps to prevent
incapable person from driving
42 Duties of motor drivers in cases of accident
43 Arrest without warrant
44 Cancellation or suspension of licence or
disqualification and endorsement of licence
45 Penalties for driving while licence cancelled
or while disqualified
45A Limited licences
PART 5A
PRESCRIBED ALCOHOL AND DRUG LEVELS
45AA Driving with excessive breath-alcohol or
blood-alcohol
45B Breath tests
45C Provision of specimens for evidential
analysis
45D Protection for hospital patients
45E Evidence
45F Detention of persons affected by alcohol or
a drug
45G Provision of specimens
45H Sentencing of offenders
1616 Niue Laws 2006 Vol 3
79 Maintenance of traffic signs
80 Offences against Part 9
PART 10
PUBLIC PLACES TO BE KEPT FREE FROM OBSTRUCTIONS
81 Trimming of hedges and trees on adjacent
land
82 Weeding on roads
83 Keeping public places tidy and safe
PART 11
BICYCLES
84 Bicycles to comply with special
requirements
85 Headlamps
86 Rear reflectors
87 Prohibited lights
88 Brakes
89 Special equipment if infant taken for a ride
90 Riding prohibited on footpaths and over
cultivated land
91 Towing prohibited
92 Warning signal before right-hand turn
93 Riding in batches restricted
94 Dangerous riding
PART 12
PASSENGER SERVICES
95 No liquor on public transport
96 Speed limit for trucks carrying passengers
97 –
PART 13
MISCELLANEOUS PROVISIONS
98 Approval of equipment for a transition
period and exemptions from equipment
requirements
99 Compensation for conversion
100 Unlawful interference with vehicle
101 Powers of Police
102 Offences
103 General penalties
104 Act to bind the Crown
105 [Spent]
106 Application of fees and fines
107 Regulations
SCHEDULE
Transport Act 1965 1617
To consolidate and amend various Acts relating to the control of vehicles, roads and road traffic
1 Short title
PART 1
PRELIMINARY
This is the Transport Act 1965.
2 –
3 Interpretation
In this Act –
“approved” means approved by the Chief Officer of Police;
“approved device” means a breathtest device approved by the Cabinet
under section 45G(5);
“bicycle” includes a tricycle driven with pedals;
“breath test” means a test for the purpose of obtaining, by means of an
approved device, a measurement that the proportion of alcohol in a
person’s breath exceeds the prescribed limit or that the proportion of
alcohol in a person’s blood is likely to exceed the prescribed limit;
“driver” includes the rider of a motorcycle or power cycle or pedal cycle;
“drug” includes any intoxicant other than alcohol;
“fail” includes refuse;
“goods” includes animals and mail;
“heavy motor vehicle” means a motor vehicle (other than a motor car that
is not used, kept, or available for the carriage of passengers for hire or
reward) the gross weight of which exceeds 2,000 kilograms;
“hospital” means an institution which provides medical or surgical
treatment for in-patients or out-patients;
“hours of darkness” means –
(a) the period of time between half an hour after sunset on any one
day and half an hour before sunrise on the next following day;
(b) Any other time when there is insufficient daylight to render clearly
visible a person or vehicle at a distance of 150 feet;
“in charge of a motor vehicle” means to be seated in the motor vehicle with
the intention of driving it or outside the motor vehicle attending to the
mechanics or otherwise preparing to drive it;
“left side” in relation to a vehicle means its side to the left of the driver ’s
seat when facing forward;
“licensing year” means the year expiring on 31 March following the issue
of an annual licence under Part 2;
“motor car” means a motor vehicle other than a motor cycle or power cycle
designed exclusively or principally for the carriage of persons not
exceeding 7 in number inclusive of the driver;
“motor cycle” means a motor vehicle running on 2 wheels or not more
than 3 wheels when fitted with a sidecar, but does not include a power
cycle;
“motor vehicle” means a vehicle that is drawn or propelled by mechanical
power and includes a trailer and a tractor but does not include a vehicle
normally propelled by mechanical power while it is being temporarily
towed without the use of its own power;
1618 Niue Laws 2006 Vol 3
“operate” means use or drive or ride or cause or permit to be driven or ridden or permit to be in any public place whether the person operating is present in person or not;
“owner” includes a bailee to whom a motor vehicle is bailed for any period exceeding 14 days and also includes a person in possession of a motor vehicle pursuant to a bill of sale; and where there are more owners of a motor vehicle than one, every such owner shall be deemed to be an owner for the purposes of this Act;
“passenger service vehicle” means a motor vehicle used for the carriage of
passengers for hire or reward;
“power cycle” means a pedal bicycle or tricycle that for alternative
propulsion is fitted with a motor attachment (whether detachable or
not);
“prescribed limit” means as the case may require –
(a) 35 micrograms of alcohol in 100 millilitres of breath; or
(b) 80 milligrams of alcohol in 100 millilitres of blood;
“Registrar” means a Registrar of Motor Vehicles appointed under this Act;
“registration plate” means a registration plate for a motor vehicle issued
under Parts 2 and 3;
“right of way” means the right of precedence in continuing on a course;
“right side” in relation to a vehicle means its side to the right of the driver ’s
seat when facing forward;
“taxicab” means a motor vehicle which –
(a) Is designed exclusively or principally for the carriage of persons
not exceeding 8 in number inclusive of the driver; and
(b) Is used for hire or reward for the carriage of passengers otherwise
than on defined routes; and
(c) Is available for hire to any member of the public;
“tractor” means a motor vehicle that is designed exclusively for the
purposes of traction and not for the carriage of passengers (other than
the driver) or of goods;
“trade motor” means any motor vehicle other than a motorcar, motor cycle,
power cycle or trailer;
“trailer” means a vehicle without motive power that is drawn or propelled
or is capable of being drawn or propelled by a motor vehicle from which
it is readily detachable, but does not include a side car attached to a
motor cycle;
“use” in relation to a vehicle includes driving, drawing or propelling by
means of another vehicle and permitting to be in any public place;
“vehicle” means a contrivance that is equipped with wheels or revolving
runners upon which it moves or is moved.
PART 2
REGISTRATION AND ANNUAL LICENCES
4 Use of motor vehicles prohibited unless Part 2 complied with
Except as specially provided in this Act, no person shall in any licensing
year knowingly use any motor vehicle in any public place, or permit any motor vehicle to be so used unless –
(a) The motor vehicle is registered under this Act;
(b) A licence to use the motor vehicle for that licensing year has been
issued;
(c) Registration plates for the motor vehicle have been issued and are
affixed to it in the manner prescribed in this Act.
Transport Act 1965 1619
5 Penalty for contravention
(1) Every person who knowingly uses or permits to be used a motor vehicle
in any public place without having it registered and licensed as required by this
Act or, having it so registered and licensed, without having registration plates
bearing the assigned registration number, duly affixed to it and every person who
wilfully or negligently defaces any registration plate so affixed commits an offence
and shall be liable on conviction to a fine not exceeding 1 penalty unit.
(2) The fact that any motor vehicle is used in any public place without
having registration plates affixed to it in the prescribed manner shall be sufficient
evidence until the contrary is proved, that the motor vehicle has not been registered
and licensed under this Act.
6 Registrar and Register
(1) There shall be appointed a Registrar of Motor Vehicles for the purposes
of this Act.
(2) The Registrar shall compile and keep up to date at his office a register
of all motor vehicles registered and of all registration plates and licences issued
and also of the fees received in respect of it.
7 Application for registration
Application for the registration of any motor vehicle shall be made in the
form numbered 1 in the Schedule or to the effect of it.
8 Pneumatic tyres and right hand drive required
Except with the written permission of Cabinet, no motor vehicle shall be
registered under this Act unless all the wheels of it are fitted with pneumatic tyres
and, where applicable, the motor vehicle has a right hand drive.
9 Procedure for registration
(1) On receipt of an application for registration of any motor vehicle under
this Act the Registrar, if satisfied that the application is in order, shall assign a
number to the motor vehicle to be shown on the motor vehicle, and shall issue to
the applicant a certificate of registration of the motor vehicle in the form numbered
2 in the Schedule.
(2) The certificate of registration shall in the case of a trade motor specify
the number of persons excluding the driver which the trade motor may lawfully
carry at any one time, and shall also specify the maximum weight of goods or
passengers or both which the trade motor may lawfully carry at any one time.
(3) No person shall drive a trade motor which is carrying at any one time
a greater number of persons or a weight exceeding the maximum weight of goods
or passengers or both specified in the certificate of registration under subsection
(2).
10 Issue and use of registration plates
(1) On completion of the registration and on the issue of an annual licence
as hereinafter provided, the Registrar shall supply to the owner of the motor vehicle
appropriate registration plates on which every letter and figure shall be not less
than 3 inches in height.
(2) Subject to subsection (1) all registration plates shall be of approved
designs, colours, and distinguishing marks.
1620 Niue Laws 2006 Vol 3
(3) (a) The number assigned to the motor vehicle by the registration shall be shown on 2 registration plates so supplied which shall be affixed one on the front and the other on the back of the motor vehicle in an upright position so that every letter and figure on the plate is upright and easily distinguishable.
(b) In the case of a power cycle or a trailer only one registration plate
shall be affixed to the back of that motor vehicle in the manner
hereinbefore described.
11 Registration in force subject to cancellation
Save as provided in this Act with respect to the cancellation of registration
in special cases, the registration of any motor vehicle shall continue in force without
renewal.
12 Registration fees
(1) There shall be payable for the registration of any motor vehicle such
fees as Cabinet may prescribe by regulation.
(2) (a) Every application for the registration of a motor vehicle shall be
accompanied by the amount of the appropriate fee.
(b) No fee shall be payable for the registration of any motor vehicle
owned by the Government.
13 Duty of owner to obtain annual licence
(1) Save with respect to motor vehicles owned by the Government every
owner of a motor vehicle shall obtain annually from the Registrar a licence to use
the motor vehicle.
(2) Every such licence shall expire on 31 March following the issue of it
and application for renewal of any licence so expiring shall be made on or before
the date of expiration.
(3) No annual licence shall be issued in respect of any motor vehicle which
has not been duly registered under this Act.
14 Application for annual licence
Subject to section 16(1), application for a licence shall be made in the form
numbered 3 in the Schedule and the first such application shall be made together
with the application for registration.
15 Fees for annual licence
(1) (a) There shall be payable for the issue of every annual licence for any
motor vehicle such fees as Cabinet may prescribe by regulation.
(b) In the case of a licence issued for a period less than a year the
prescribed licence fee shall be reduced by one-twelfth for every
complete month by which that period is less than one year.
(2) Every application for an annual licence shall be accompanied by the
amount of the appropriate fee.
16 Issue of annual licence and duty to produce licence on demand
(1) (a) The Registrar shall thereupon issue in the form numbered 4 in the
Schedule a licence to use the motor vehicle.
(b) With respect to the renewal of any annual licence the Registrar may
accept and issue applications and licences in a simplified form
approved by Cabinet.
Transport Act 1965 1621
(2) While any such licence is in force and registration plates are affixed as prescribed the motor vehicle may be used in any public place on Niue during the licensing year for which the licence was issued.
(3) Every person operating any motor vehicle shall produce the annual licence for inspection whenever required so to do by any constable.
17 Cancellation of registration
(1) If any registered motor vehicle is destroyed or becomes permanently
useless as a motor vehicle or is intended to be removed from Niue the owner shall
forthwith give to the Registrar notice of that destruction, condition or removal, as
the case may be, and shall deliver to the Registrar the certificate of registration
and the licence issued for the then current licensing year and, if practicable, the
registration plates issued and the Registrar shall thereupon cancel the registration
of the motor vehicle and the annual licence.
(2) On the cancellation of registration and licence as aforesaid Cabinet may
cause to be refunded by the Treasurer of Niue to the owner such sum as it thinks
proper not exceeding one-twelfth part of the annual licence fee for every complete
month between the date of cancellation of the licence and the end of the period for
which the licence fee was paid.
(3) When the registration of a motor vehicle is cancelled the Registrar may
assign to any other motor vehicle thereafter registered the number of the motor
vehicle the registration whereof has been cancelled, if the registration plates
assigned to that vehicle have been delivered or the Registrar is satisfied that no
confusion is likely to arise from the assignment of the same number.
18 Change of ownership
(1) Within 7 days after the sale or other disposal of a motor vehicle the
person selling it or otherwise disposing of it shall deliver to the Registrar the
certificate of registration and the licence issued for the then current licensing year
in respect of that motor vehicle and the Registrar shall endorse on the certificate
and licence a memorandum of the change of ownership, and shall on the payment
of a fee of $10 issue the endorsed certificate and licence to the new owner.
(2) No person who becomes the owner of any motor vehicle under any
sale or other disposal as aforesaid shall use or permit to use the motor vehicle in
any public place unless and until he has received the endorsed certificate and
licence.
PART 3
LICENSING OF MOTOR DRIVERS
19 Unlicensed persons not to drive
(1) Except as otherwise provided in this section it shall not be lawful for
any person to drive a motor vehicle in any public place unless he is the holder of
a motor driver ’s licence issued under this Part and for the time being in force and
no person shall employ any other person so as to drive a motor vehicle unless the
person so employed is the holder of a driver ’s licence as aforesaid.
(2) Any person who acts in contravention of this section commits an offence
and shall be liable on conviction to a fine not exceeding 1 penalty unit.
(3) Subject to subsection (4), where any person (in this section called “the
learner”) is driving a motor vehicle and is accompanied by a person seated
alongside him who is teaching the learner to drive and who is the holder of a
driver ’s licence for the time being in force which authorises him to drive a motor
vehicle of that class in a public place, the learner and any person permitting the
1622 Niue Laws 2006 Vol 3
learner to drive the motor vehicle shall be deemed not to be acting in contravention of subsection (1).
(4) Nothing in subsection (3) applies in any case where –
(a) The learner has not attained the age that qualifies him to obtain a
driver ’s licence to drive the motor vehicle that he is driving; or
(b) The learner is subject to an order that disqualifies him from holding
or obtaining a driver ’s licence.
20 Application for driver’s licence
Subject to section 22(2) application for a motor driver ’s licence shall be
made in the form numbered 5 in Schedule 1 or to the effect thereof and every such
application shall clearly state the class or classes of motor vehicles in respect of
which the licence is applied for.
20A Prohibitions relating to drivers’ licences
(1) No person who is under the age of 14 years shall apply for or obtain a
driver ’s licence, and any licence that is so obtained by any such person shall be of
no effect.
(2) No person who is under the age of 18 years shall apply for or obtain a
licence to drive a heavy motor vehicle, and any such licence that is so obtained
shall be of no effect.
(3) No person who is under the age of 20 years shall apply for or obtain a
licence to drive a passenger service vehicle, and any such licence that is so obtained
shall be of no effect.
(4) An application for a licence to drive a passenger service vehicle must
be accompanied by a medical certificate certifying the applicant medically fit to
drive.
21 Fees for driver’s licence
There shall be payable for the issue of a driver ’s licence such fees as Cabinet
may prescribe by regulation and every application for a licence shall be
accompanied by the amount of the appropriate fee.
22 Procedure of licensing
(1) On receipt of an application as aforesaid the Registrar shall issue a
driver ’s licence to any applicant who satisfies him –
(a) That the applicant is over the age of 14 years; and
(b) That by practical test and oral examination or by other satisfactory
evidence of fitness, the applicant is competent to drive the class or
classes of motor vehicles in respect of which the licence is applied
for; and
(c) That, where the applicant is 65 or more years of age or where the
Registrar considers it advisable, the applicant shall have obtained
a certificate of physical fitness from a Medical Officer;
(d) Cabinet may exempt any person or class of persons generally or
otherwise from the requirements of this section.
(2) (a) Every driver ’s licence shall be issued in the form numbered 6 in
the Schedule.
(b) With respect to the renewal of any driver ’s licence the Registrar
may accept and issue applications and licences in a simplified form
approved by Cabinet.
Transport Act 1965 1623
23 Fees for driving test
Where any applicant is required under this Part to undergo any practical
driving test there shall be payable to the Department by which the test is carried
out a testing fee of such sum as Cabinet may prescribe by regulation and such
testing fee shall be payable whether or not a driver ’s licence is issued to the
applicant.
24 Expiration and renewal of licence
(1) If not earlier cancelled or suspended as provided in this Act every
driver ’s licence shall expire on 31 March following the date of issue and application
for renewal of any licence so expiring shall be made on or before the date of
expiration.
(2) Any motor driver ’s licence may be cancelled at any time by the Registrar
upon receipt of a certificate from a Medical Officer that the holder is no longer
physically fit to drive a motor vehicle of the class or classes for which he had
obtained a driver ’s licence.
25 L plates
Every driver of a motor cycle issued with a driver ’s licence for the first
time shall for 3 months or longer if the examining officer thinks necessary, display
on his motor cycle an L plate (Learner ’s registration plate) to be supplied by the
Registrar, and during this time he shall carry no passengers on his motor cycle.
26 Charge for registration plates
Except with respect to registration plates issued to the Government, a charge
sufficient to cover the cost of any plates issued by the Registrar may be made on
their issue.
27 Driver to produce his licence on demand
Every person driving any motor vehicle shall have his driver ’s licence with
him and shall produce the same for inspection whenever required so to do by any
constable.
PART 4
RULES OF THE ROAD
28 Vehicles to keep to the left
Every driver of a vehicle shall keep the vehicle as close as is practicable to
the side of the roadway on his left.
29 Driver of vehicle to give audible signal when overtaking
Every driver of a vehicle shall, when overtaking any other vehicle, signal
by use of the horn or other sounding device and then pass on his right or off side
of the overtaken vehicle, and shall not then move into the line of passage of the
other vehicle until clear from it by at least 18 feet.
30 Overtaking involving risk prohibited
No driver of any vehicle shall overtake or attempt to overtake any other
vehicle proceeding in the same direction –
(a) At any intersection, or within a distance of 100 feet before an
intersection;
(b) Unless the driver has a clear view of the road and traffic on it for a
distance of at least 300 feet in the direction in which he is travelling.
1624 Niue Laws 2006 Vol 3
31 Right-hand turn at intersection
Every driver of a vehicle intending to turn at an intersection from any
roadway into another roadway to his right, shall when approaching and turning,
maintain his position to his left of the centre of the roadway out of which he is
turning until he enters the area of the intersection, and shall then turn into the
roadway which he is entering as directly and quickly as he can with safety.
32 Driver of vehicle to yield the right of way to vehicle on his right
Every driver of a vehicle, when approaching or crossing any intersection
which any other vehicle is approaching or crossing from his right shall, where
there would be a possibility of a collision if both continued on their course, yield
the right of way to such other vehicle and allow the same to pass him, and if
necessary for that purpose stop his vehicle.
33 Unsafe vehicles
No person shall operate any vehicle in such conditions or so loaded or
with a load so unsafely secured as to cause, or to be liable to cause, injury to any
person or animal, or annoyance (by reason of noise or other cause) to any person,
or damage to any property.
34 Dangerous riding on vehicles
No person shall ride, and the driver shall not permit any person to ride, on
any vehicle in a manner or position which may be liable to cause injury to that
person or any other person.
35 Motor driver’s visible signals
Every driver of a motor vehicle, whenever in view of other traffic and unless
prevented by a sudden emergency, shall, before manoeuvring the vehicle in manner
hereinafter described, give reasonable notice of his intention so to do as here
provided –
(a) If he is about to stop or reduce speed –
(i) he shall extend the right arm directly outwards from the right
or off side of the motor vehicle with the upper arm horizontal
and the forearm vertical; or
(ii) if the vehicle is equipped with approved automatic signalling
devices at the rear of the vehicle he may indicate his intention
by means of such devices;
(b) If he is about to turn to his right or about to draw out from the
roadside towards his right, or about to overtake a vehicle travelling
in the same direction –
(i) he shall extend the right arm horizontally outwards from the
right or off side of the vehicle;
(ii) if the vehicle is equipped with approved automatic signalling
devices capable of giving a signal closely corresponding to the
signal described in subparagraph (i) he may indicate his
intention by means of such devices.
36 Parking of motor vehicles
No person shall leave or park any motor vehicle upon any public place
unless the motor vehicle is so located or during the hours of darkness so lighted
that it is not a danger or a nuisance to any person or vehicle in the public place.
Transport Act 1965 1625
37 Towing of motor vehicles and leading of animals
(1) No person shall operate any power cycle or any motor cycle (other
than one to which a side car is attached) for the purpose of towing any trailer.
(2) No person shall operate any motor vehicle for the purpose of towing
any other motor vehicle (except a trailer) unless such other motor vehicle is not in
working order and is being temporarily towed without the use of its own power
for the purpose of being repaired.
(3) No person shall lead or permit to be led any animal by or from any
motor vehicle.
38 Number of persons on motor cycles and power cycles and requirements as to safety helmets
(1) No person shall drive a motor cycle in a public place –
(a) Carrying any person upon the motor cycle in front of the driver; or
(b) Without a side car carrying more than 2 persons inclusive of the
driver, or carrying any person seated otherwise than astride and
facing forward;
(c) With a side car carrying more than 4 persons in all.
(2) No person shall drive a power cycle in a public place while it is carrying
any person other than the driver.
38A Safety helmets for motorcyclists
(1) No person shall drive or be a passenger on a motor cycle unless that
person is wearing an approved safety helmet of a type which has been approved
under subsection (2), and which is securely fastened.
(2) (a) For the purposes of this section, “approved safety helmet” means a
safety helmet for the time being approved by a competent authority
in New Zealand, Australia, Japan or the United States of America.
(b) A helmet which bears the approval mark of such an authority shall
in the absence of evidence to the contrary be deemed to be an
approved safety helmet.
PART 5
RECKLESS OR INTOXICATED DRIVERS
39 Penalties for causing death or bodily injury through reckless or negligent
driving or through driving while intoxicated
(1) Every person commits an offence against this Act who, without being
guilty of the crime of manslaughter as defined in Part 5 of the Niue Act 1966 –
(a) Recklessly or negligently drives any motor vehicle and thereby
causes bodily injury to or the death of any person; or
(b) While under the influence of drink or a drug to such an extent as to
be incapable of having proper control of the motor vehicle, is in
charge of a motor vehicle and by an act or omission in relation to it
causes bodily injury to or the death of any person.
(2) Every person who commits an offence against this section is liable on
conviction to imprisonment for a term not exceeding 5 years or to a fine not
exceeding 15 penalty units or to both, and (without prejudice to the power of the
Court to order a longer period of disqualification) the Court shall order him to be
disqualified from holding or obtaining a driver ’s licence for a period of one year,
unless the Court for special reasons relating to the offence thinks fit to order
otherwise.
1626 Niue Laws 2006 Vol 3
40 Penalties for reckless or negligent driving or driving while intoxicated
(1) Every person commits an offence who –
(a) Recklessly or negligently drives a motor vehicle in any public place;
or
(b) Drives any motor vehicle at a speed which, having regard to all the
circumstances of the case, is or might be dangerous to the public;
(c) [Repealed by 1997/221]
(d) Drives a vehicle in a manner which having regard to all the
circumstances of the case is or might be dangerous to the public or
any person.
(2) (a) A person who, when driving or attempting to drive a motor vehicle
on a road or other public place, is unfit to drive through drink or
drugs, shall be guilty of an offence.
(b) Without prejudice to paragraph (a), a person who, when in charge
of a motor vehicle which is on a road or other public place is unfit
to drive through drink or drugs, shall be guilty of an offence.
(c) For the purposes of paragraph (b), a person shall be deemed not to
have been in charge of a motor vehicle if he proves that, at the
material time, the circumstances were such that there was no
likelihood of his driving that vehicle so long as he remained unfit
to drive through drink or drugs, but in determining whether there
was such a likelihood the court may disregard any injury to him
and any damage to the vehicle.
(d) For the purposes of this subsection a person shall be taken to be
unfit to drive if his ability to drive properly is for the time being
impaired.
(e) A constable may arrest a person without warrant if he has reasonable
cause to suspect that that person is or has been committing an
offence under this subsection.
(f) For the purpose of arresting a person under the power conferred
by paragraph (e) a constable may enter (if need be by force) any
place where that person is or where the constable, with reasonable
cause, suspects him to be.
(3) Every person commits an offence against this Act and shall be liable on
conviction to a fine not exceeding 5 penalty units and the Court may order him to
be disqualified from holding or obtaining a driver ’s licence for a period not
exceeding 3 months who drives a motor vehicle in any public place or without
reasonable consideration for other persons using that public place.
41 Constable may take steps to prevent incapable person from driving
(1) Any constable who believes that any person while for the time being in
charge of any motor vehicle is, by reason of physical or mental condition, however
arising, incapable of having proper control of the motor vehicle, may –
(a) Forbid that person to drive the motor vehicle;
(b) Require that person to deliver up forthwith all ignition or other
keys of the motor vehicle in his possession;
(c) Take such steps as may be necessary to render the motor vehicle
immobile or to remove it to a place of safety.
(2) Every person commits an offence and shall be liable on conviction to
imprisonment for a term not exceeding 3 months or to a fine not exceeding 5
penalty units and further, disqualified from holding or obtaining a driver ’s licence
for up to 3 months who fails to comply with any direction given to him under
Transport Act 1965 1627
subsection (1) or does any act that is for the time being forbidden under that subsection.
(3) No person shall be deemed to have committed an offence under this section unless the Court is satisfied that the constable had reasonable grounds for believing that in all the circumstances of the case the direction or prohibition was necessary in the interests of the defendant or of any other person or of the public.
42 Duties of motor drivers in cases of accident
(1) Where an accident arising directly or indirectly from the use of a motor
vehicle occurs to any person or to any animal or vehicle in charge of any person,
the driver of the motor vehicle shall stop and ascertain whether he has injured
any person and in that event it shall be his duty to render all practicable assistance
to the injured person.
(2) (a) In the case of any such accident (whether any person has been
injured or not) the driver of the motor vehicle shall, if required,
give to any constable or to any person concerned his name and
address and also the name and address of the owner of the motor
vehicle and, if any, the numbers to be shown on the registration
plates and the annual licence of the vehicle.
(b) If the accident involves injury to any person the driver shall report
the accident in person at the nearest Police Station or to any constable
as soon as reasonably practicable, and in any case not later than 24
hours after the accident unless the driver is incapable of doing so
by reason of injuries sustained by him as a result of the accident.
(3) Every driver who fails to comply with any duty imposed on him by
subsection (1) in any case where any other person is injured in the accident commits
an offence and shall be liable on conviction to imprisonment for a term not
exceeding one year or to a fine not exceeding 5 penalty units and the Court may
order him to be disqualified from holding or obtaining a driver ’s licence for a
period not exceeding 3 months.
(4) Every driver who fails to comply with any duty imposed on him by
subsection (1) in any case where no other person is injured in the accident commits
an offence and shall be liable on conviction to imprisonment for a term not
exceeding 3 months or to a fine not exceeding 5 penalty units.
(5) Every person who fails to comply with any duty imposed on him by
subsection (2) commits an offence.
(6) In this section “injury” includes death.
43 Arrest without warrant
(1) Any constable who, on reasonable and probable grounds believes that
any person has committed or attempted to commit an offence against section 41
or 42(1) or that any person, while under the influence of drink or a drug to such an
extent as to be incapable of having proper control of a motor vehicle, has committed
an offence against section 39 or 40(1) or (2) may arrest that person without warrant.
(2) Every driver of a motor vehicle shall stop at the request or signal of
any constable in uniform, and on demand shall give him his name and address,
and, if he is not the owner of the motor vehicle, also the name and address of the
owner.
(3) Any driver who on demand fails to stop, or refuses to give any such name and address, commits an offence and may be arrested by any constable without warrant.
1628 Niue Laws 2006 Vol 3
44 Cancellation or suspension of licence or disqualification and endorsement of licence
(1) The court before which any person is convicted of an offence against Part 4, 5 or 6 or of any offence in connection with the driving of a motor vehicle (other than a first or second offence consisting solely of exceeding any speed limit) may, in addition to or in lieu of any other penalty inflicted –
(a) If the person convicted holds a motor driver ’s licence, order that the licence of such person be cancelled or suspended for such time as the court thinks fit and may also declare that a person whose licence is so cancelled shall be disqualified from obtaining a motor driver ’s licence for such time as the court thinks fit;
(b) If the person convicted does not hold a motor driver ’s licence,
declare him to be disqualified from obtaining any motor driver ’s
licence or a motor driver ’s licence for specified classes of motor
vehicles for such time as the court thinks fit.
(2) On any conviction involving cancellation or suspension of a motor
driver ’s licence or disqualification of the driver under this section the court shall
cause particulars of the conviction and any order of the court made in connection
with it to be endorsed on the driver ’s licence.
45 Penalties for driving while licence cancelled or while disqualified
Where any person whose motor driver ’s licence is cancelled under this Act
or who is disqualified from obtaining a driver ’s licence, drives a motor vehicle in
any public place while his licence is so cancelled or while he is so disqualified, he
commits an offence and shall be liable on conviction to a fine not exceeding 5
penalty units and (without prejudice to the power of the court to order a longer
period of disqualification) the court shall order him to be disqualified from holding
or obtaining a driver ’s licence for a period of one year, unless the court for special
reasons relating to the offence thinks fit to order otherwise.
45A Limited licences
(1) Except as provided in subsection (1A) this section applies in respect of
any person who is disqualified by an order made under this Act from holding or
obtaining a driver ’s licence.
(1A) Nothing in this section shall apply to any person who is disqualified
from holding or obtaining a driver ’s licence as a result of a conviction for an
offence –
(a) Against section 39; or
(b) Committed while driving a passenger service vehicle or a heavy
motor vehicle.
(2) Subject to this section, on the making of the order of disqualification or
at any time thereafter, the court, on the application of the person in respect of
whom the order was made, may, if it is satisfied that the order of disqualification
has resulted or will result in extreme hardship to the applicant (whether in relation
to employment or otherwise) or undue hardship to a person other than the
applicant (whether in relation to employment or otherwise), make an order under
this section authorising him to obtain, immediately or after the expiration of such
period as the Court may specify, a driver ’s licence (in this Part referred to as a
limited licence) authorising him to drive to such extent (being the least extent that
is necessary to alleviate that hardship) as the court specifies in the order.
Transport Act 1965 1629
(2A) Unless the court decides in any particular case that compliance with this subsection is impracticable, no order may be made under this section until every person who has made an affidavit filed in support of the application for the order has appeared before the court for examination on the contents of this affidavit. (3) In making an order under this section, the court shall specify in the
order the purpose for which the limited licence is issued, the particular vehicle or
the type of vehicle which may be driven, the days of the week and times at which
that vehicle may be driven, and such other matters as may be necessary to limit
the order to alleviating the hardship which was alleged and proved and may
specify in the order such other matters as the court thinks fit.
(4) If any application under this section is refused, a further application in
respect of the same order shall not be entertained if made within 3 months after
the date of that refusal.
(5) If the court makes an order under this section the constable may,
notwithstanding anything in this Act to the contrary but otherwise subject to this
Act, issue to the person entitled to it a limited licence under the terms of the order.
(6) Where at the time when the Court makes an order under this section
the applicant is the holder of a driver ’s licence which is suspended by virtue of
the order of disqualification and the period of disqualification will expire before
the expiration of the term of the licence, the constable may, instead of issuing a
limited licence, endorse the particulars of the order granting the limited licence
on his existing licence, which shall thereafter have effect as a limited licence.
(7) Where the holder of a limited licence or any person who is authorised
to obtain a limited licence but has not become the holder of such a licence is
convicted of any offence, for which an order of disqualification is imposed, the
limited licence shall be deemed to be revoked or shall not be issued, as the case
may be, and the original order of disqualification shall revive and have effect for
the balance of the term for which it was originally imposed; and, unless the court
orders otherwise, the period of disqualification under the revived order of
disqualification shall run concurrently with the order of disqualification in respect
of the second offence.
(8) The holder of a limited licence that is deemed to be revoked under
subsection (7) shall forthwith, and whether demand is made on him or not,
surrender his licence to the court by which he is convicted or to a member of the
Police.
PART 5A ALCOHOL AND DRUG LEVELS
45AA Driving with excessive breath-alcohol or blood-alcohol
(1) If a person –
(a) Drives or attempts to drive a motor vehicle on a road or other public
place; or
(b) Is in charge of a motor vehicle on a road or other public place,
after consuming so much alcohol that the proportion of it in his breath, or blood
exceeds the prescribed limit he shall be guilty of an offence.
(2) It is a defence for a person charged with an offence under subsection
(1)(b) to prove that, at the time he is alleged to have committed the offence, the
circumstances were such that there was no likelihood of his driving a vehicle whilst
the proportion of alcohol in his breath or blood remained likely to exceed the
prescribed limit; but in determining whether there was such a likelihood the Court
may disregard any injury to him and any damage to the vehicle.
1630 Niue Laws 2006 Vol 3
45B Breath tests
(1) Where a constable has reasonable cause to suspect –
(a) That a person is driving or attempting to drive or is in charge of a
motor vehicle on a road or other public place; or
(b) That a person has been driving or attempting to drive or has been
in charge of a motor vehicle on a road or other public place,
then that constable may, subject to section 45D, require that person to provide a
specimen of breath for a breath test.
(2) A person who, without reasonable excuse, fails to provide a specimen
of breath for a breath test when required to so under this section, shall be guilty of
an offence.
(3) A constable may arrest a person without warrant if –
(a) As a result of a breath test he has reasonable cause to suspect that
the proportion of alcohol in that person’s breath or blood exceeds
the prescribed limit; or
(b) That person failed to provide a specimen of breath for a breath test
when required to so under this section;
but a person shall not be arrested by virtue of this subsection when he is at a
hospital as a patient.
(4) For the purpose of requiring a person to provide a specimen of breath
for a breath test in a case where he has reasonable cause to suspect that the person
has been involved in an accident involving injury to another person, or of arresting
him in such a case under subsection (3), a constable may enter, if need be by force,
any place where that person is or where the constable, with reasonable cause,
suspects him to be.
45C Provision of specimens for evidential analysis
(1) In the course of an investigation whether a person has committed an
offence under section 40(2) or 45 AA a constable may, subject to this section and
section 45D, require that person:
(a) To provide a specimen of breath for analysis by means of an
approved device; or
(b) To provide a specimen of blood for laboratory analysis.
(2) If a specimen of blood is required by a constable the person shall permit
a registered medical practitioner to take such a specimen of blood unless the
medical practitioner is of the opinion that for medical reasons a specimen of blood
cannot or should not be taken.
(3) A person who, without reasonable excuse, fails to provide a specimen
when required to do so under this section shall be guilty of an offence.
(4) On requiring any person to provide a specimen under this section, a
police officer shall warn him that a failure to provide that specimen may render
him liable to prosecution.
45D Protection for hospital patients
(1) While a person is at a hospital as a patient he shall not be required to
provide a specimen of breath for a breath test or to provide a specimen of blood
for laboratory analysis unless the medical practitioner in immediate charge of his
case has been notified of the proposal to make the requirement, and
(a) If the requirement is then made it shall be for the provision of a
specimen at the hospital; but
(b) If the medical practitioner objects on the ground specified in
subsection (2) then the requirement shall not be made.
Transport Act 1965 1631
(2) The ground on which the medical practitioner may object is that the requirement of the provision of a specimen would be prejudicial to the proper care and treatment of the patient.
45E Evidence
(1) The following provisions apply with respect to proceedings for an
offence under section 40(2) or 45AA.
(2) Evidence of the proportion of alcohol or any drug in the specimen of
breath or blood provided by the accused shall, in all cases, be taken into account
and it shall be assumed that the proportion of alcohol or drugs in the accused’s
breath or blood at the time of the alleged offence was not less than the specimen;
but if the proceedings are for an offence under section 40(2), 45AA or 45B in a case
where the accused is alleged to have been unfit through drink, the assumption
shall not be made if the accused proves –
(a) That he consumed alcohol after he had ceased to drive, or attempted
to drive or to be in charge of a motor vehicle on a road or other
public place and before he provided the specimen; and
(b) That had he not done so the proportion of alcohol in his breath or
blood would not have exceeded the prescribed limit, or if the
proceedings are for an offence under section 40(2), would not have
been such as to impair his ability to drive properly.
(3) It shall be presumed that the result of the analysis of the breath or blood
specimen is correct, unless the contrary is proven.
(4) Where the proportion of alcohol in a specimen of breath or blood
provided by the accused is found to contain less than the prescribed limit, or to be
such as would not render that person unfit to drive, it shall be open to the
prosecutor to prove that, when that person was driving or attempting to drive or
was in charge of a motor vehicle, the concentration of alcohol in his breath or
blood would at that time have been above the prescribed limit, or would at that
time have been at such a concentration as to have rendered that person unfit to
drive.
(5) Evidence of the proportion of alcohol or a drug in the person’s blood may, subject to subsections (7) and (8), be given by whichever of the following is appropriate, that is to say:
(a) A statement automatically produced by the approved device by
which the proportion of alcohol in the person’s breath was
measured, and a certificate signed by a constable (which may but
need not be contained in the same document as the statement) that
the statement relates to a specimen of breath provided by the
accused at the date and time shown in the statement; or
(b) Oral evidence from the operator of the approved device by which
the proportion of alcohol in that person’s breath was measured as
to the breath alcohol concentration reading given by the device,
together with the evidence that the device was a reliable device for
the purposes of this Act; or
(c) A certificate signed by a suitably qualified analyst as to the
proportion of alcohol or any drug found in a specimen of blood
provided by the accused and as identified in the certificate.
(6) Where, at the time a specimen of blood was provided by the accused,
he asked to be supplied with such a specimen, evidence of the proportion of alcohol
or any drug found in the specimen is not admissible on behalf to the prosecution
unless –
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(a) The specimen in which the alcohol or drug was found is one of two parts into which the specimen provided by the accused was divided at the time it was provided; and
(b) The other part was supplied to the accused.
(7) A document purporting to be such a statement or such a certificate, or
both such a statement and such a certificate, as is mentioned in subsection (5)(a) is
admissible in evidence on behalf of the prosecution in pursuance of this section
only if a copy of it has either, been handed to the accused when the document was
produced, or has been served on him not later than 14 days before the hearing,
and any other document is so admissible only if a copy of it has been served on
the accused not later than 7 days before the hearing.
(8) A copy of the document as defined in subsection (5)(a) or subsection
(5)(c) must be served personally on the defendant or sent by registered post or
recorded delivery service on him.
45F Detention of persons affected by alcohol or a drug
A person required to provide a specimen of breath or blood may be detained
at a police station until it appears to a constable that, were that person then driving
or attempting to drive a motor vehicle on a road he would not be committing an
offence under section 40(2) or 45AA; but
(a) A person shall not be detained under this section if it appears to a
constable that there is no likelihood of his driving or attempting to
drive a motor vehicle whilst his ability to drive properly is impaired
or whilst the proportion of alcohol in his breath or blood exceeds
the prescribed limit; and
(b) A constable shall consult a medical practitioner on any question
arising under this section whether a person’s ability to drive
properly is or might be impaired through drugs and shall act on
the medical practitioner ’s advice.
45G Provision of specimens
(1) A person does not provide a specimen of breath for a breath test or for
analysis to be carried out and provided in such a way as to enable the objective of
the test or analysis to be satisfactorily achieved.
(2) A person provides a specimen of blood if and only if he consents to it
being taken by a suitably qualified person and it is so taken in such quantity and
of such quality as is capable of being properly analysed for the purposes of this
Act.
(3) A “reasonable excuse” for a person’s failure to provide a specimen is only one which would make it physically impossible for that person to supply the required specimen, or where the provision of that specimen would entail an actual and substantial risk to that person’s health.
(4) Where the result or results from the approved device, as is used for the purposes of section 45C(1) (a), is or are given in terms of the blood alcohol concentration then it shall be assumed, in all cases, that the concentration of alcohol in a person’s breath is a factor of 2300 times less than in his arterial blood.
(5) Cabinet approves the following breath test devices –
(a) All breath test devices approved for use by law enforcement
agencies in New Zealand;
(b) All breath test devices manufactured by Lion Laboratories in Wales
and specifically the Lion alcolmeter SD-400P device.
Transport Act 1965 1633
45H Sentencing of offenders
(1) Everyone who commits an offence under section 40(2) or this Part is
liable on conviction to imprisonment for a term not exceeding 6 months or to a
fine not exceeding 10 penalty units or both, and the Court may in addition order
him to be disqualified for holding or obtaining a driver ’s licence for such period
as the Court considers appropriate.
(2) In addition to the penalties specified in subsection (1) the Court may
also upon conviction impose the sentence of community work.
PART 6
SPEED
46 Chief of Police may impose speed limits outside villages
The Chief of Police may by notice published as he thinks fit, declare any
area outside the boundaries of any village to be subject to speed limits for the
purposes of this Part.
47 Speed limits and penalties for exceeding speed limits
(1) (a) Every person commits an offence who –
(i) drives any motor vehicle in any public place within the
boundaries of any village or of any other area where speed
limits are imposed, at a greater speed than 25 miles per hour;
(ii) drives a motor vehicle (except a truck) in any public place other
than aforesaid at a greater speed than 35 miles per hour, and a
truck at a greater speed than 30 miles per hour;
(iii) drives a motor vehicle in any public place at a greater speed
than 15 miles per hour when within 50 yards of the entrance to
any school, church, meeting house or place of entertainment at
a time when people are assembling or leaving.
(b) Nothing in this section shall operate to make lawful in respect of
any place for which a lower speed limit than that fixed by this
section, is duly fixed by this Act or any other enactment for the
time being in force, any speed in excess of that lower limit.
(2) The boundaries of any village shall for the purpose of this section be
the boundaries defined by any enactment for the time being in force or, where no
such enactment is in force or does not apply, by Cabinet and shall be clearly marked
by suitable signs.
(3) Every person who commits an offence against this section shall be liable
on conviction to a fine not exceeding 1 penalty unit.
(4) It shall be a defence to any person charged with an offence against this
section if he was driving a motor vehicle for the purpose of or in connection with –
(a) The execution of his duties as a constable; or
(b) The necessary attendance at fires; or
(c) First aid or other urgent services rendered on behalf of a sick or
injured person.
48 [Repealed by 3/24/1976]
1634 Niue Laws 2006 Vol 3
PART 7
EQUIPMENT
49 Light for vehicles and motor vehicles
No person shall operate any vehicle during the hours of darkness without
carrying a conspicuous light on the vehicle in such a manner that the light shall be
distinctly visible to persons meeting or following the vehicle.
50 Headlamps for motor vehicles
No person shall operate a motor vehicle (other than a motor cycle, power
cycle, or trailer) unless it is equipped with two headlamps attached to it, which
shall –
(a) Be of approximately equal candle power; and
(b) Display beams of light of sufficient power to enable substantial
objects and the nature of the road surface to be clearly visible during
the hours of darkness under normal driving and atmospheric
conditions to a driver of normal vision at a distance of at least 150
feet directly in front of the vehicle.
51 Headlamps for motor cycles and power cycles
(1) (a) No person shall operate any motor cycle or power cycle unless it is
equipped with one headlamp attached to it which shall conform to
the requirements of section 50 (b).
(b) The minimum distance specified in section 50(b) shall be only 100
feet for power cycles.
(2) No person shall operate any motor cycle having a side car attached
unless the side car is also equipped with a lamp directing a beam of light forward
and being attached to the front of the side car on the side of it farther from the
motor cycle.
52 Dipping of lights
While meeting and passing another vehicle the driver of any motor vehicle
shall dip his headlights.
53 Rear lights and rear reflectors
(1) No person shall operate a motor vehicle unless it is equipped with at
least one rear lamp attached to the rear of the motor vehicle and showing a red
light visible not less than 300 feet to the rearward.
(2) (a) No person shall operate a motor vehicle (other than a motor cycle
or a power cycle) unless it is equipped with 2 red rear reflectors
placed at the back of the motor vehicle so as to reflect directly to the
rear any light shining towards it from rearward of the vehicle.
(b) Such reflectors shall consist of an approved material and shall be
fitted so that they are displayed in a position within 6 inches of the
rear extremity at each side of the motor vehicle.
(3) No person shall operate a motor cycle or power cycle unless it is
equipped with one red rear reflector conforming to subsection (2).
54 Registration plate to be lit up
The registration plate affixed to the rear of every motor vehicle shall be
illuminated by a beam of white light either from the rear light or, where there are
2 rear lights fitted at each side of the motor vehicle from a separate light, and in
every case so arranged that every letter and numeral on the registration plate is
plainly distinguishable under normal atmospheric conditions from a distance of
at least 60 feet.
Transport Act 1965 1635
55 Two independent brakes
No person shall operate a motor vehicle (other than a motor cycle, power
cycle, or a trailer) unless it is equipped with 2 independent brakes, namely –
(a) A footbrake which is capable of bringing to a standstill the motor
vehicle, without assistance from the compression of the engine,
within a distance of 35 feet from a speed of 20 miles per hour upon
a hard, dry, level roadway free of loose material; and
(b) A handbrake which is capable of bringing the vehicle to a standstill
within a distance of 70 feet from a speed of 20 miles per hour upon
a hard, dry, level roadway free of loose material and is also capable
of holding the vehicle at rest on a grade of one in 5.
56 Brakes for heavy trailers
No person shall operate a motor vehicle towing a trailer the weight of which
with its load exceeds 2 tons, unless the trailer is equipped with a brake readily
applicable by the driver from his normal driving position and complying with the
requirements for a footbrake under section 55(a).
57 Brakes for motor cycles
No person shall operate a motor cycle, unless it is equipped with a brake
acting on the rear which is capable of bringing to a standstill the motor cycle
without assistance from the compression of the engine, within a distance of 35
feet from a speed of 20 miles an hour upon a hard, dry, level roadway free of loose
material, and which is capable of easy adjustment.
58 Brakes for power cycles
(1) No person shall operate a power cycle unless it is equipped with a
reliable brake on each road wheel.
(2) If the brake on the rear wheel is hand operated, it shall be readily
operable with the left hand.
59 All brakes to be properly maintained
All brakes shall be maintained so that at all times they are efficient and in
good working order.
60 Sounding devices
No person shall operate a motor vehicle (other than a trailer) unless it is
equipped with an adequately audible warning device, and a trailer unless it is
attached to a motor vehicle so equipped.
61 Bells and sirens prohibited
(1) (a) No person shall operate a motor vehicle equipped with a bell as a
warning device.
(b) A power cycle may be fitted with a bell of an approved type as its
sole warning device.
(2) Except with the written permission of the Cabinet, no person shall
operate a motor vehicle equipped with a siren as a sole or additional warning
device.
1636 Niue Laws 2006 Vol 3
62 Rear vision mirror
No person shall operate any motor vehicle (other than a trailer) unless it is
equipped with a mirror fitted in an approved position so as to reflect to the driver
a view of the roadway to the rear sufficient for driving requirements.
63 Steering
No person shall operate a motor vehicle unless the steering gear and
associated mechanism is in a safe and efficient working condition.
64 Silencer
No person shall operate any motor vehicle (other than trailer) unless it is
equipped with an approved silencer or silencing device through which the exhaust
is projected.
65 Windscreen protection
(1) No person shall operate any motor vehicle (other than a motor cycle,
power cycle, or a trailer) fitted with a windscreen unless it is equipped with an
efficient mechanically or electrically operated windscreen wiper to prevent
interference with the driver ’s vision by weather conditions.
(2) No person shall drive any motor vehicle fitted with a windscreen
forward of the driver unless such windscreen is at all times kept clean and clear so
that the driver ’s view forward will not be impeded or obstructed.
66 Dangerous fittings
No person shall operate a motor vehicle having affixed to it any ornament,
decoration, or fitting of such a nature and in such a position that it is likely to
cause injury to any person with whom the motor vehicle may collide.
67 Speedometer
No person shall operate a motor vehicle (other than a trailer or a power
cycle) unless it is equipped with an efficient speedometer in good working order.
68 Footrests for motor cycles
No person shall operate a motor cycle unless it is equipped with adequate
footrests for the use of every person carried otherwise than in a side car.
69 Testing authority
PART 8
MOTOR VEHICLE INSPECTION
There shall be for the purposes of this Part a testing authority which shall be the Chief of Police or any Government Department or person authorised in that behalf by Cabinet.
70 Warrant of fitness on half-yearly inspection
(1) No person shall operate a motor vehicle (other than power cycle) unless
there is carried in or on that motor vehicle a warrant of fitness issued in respect of
that motor vehicle and disclosing thereon a date of examination not earlier than 6
months before such operation.
(2) The warrant of fitness shall be in 2 portions as described in the form
numbered 7 in the Schedule and shall be issued by the testing authority.
(3) The manner in which the portion of the warrant of fitness issued to the
owner shall be affixed to the motor vehicle may be prescribed by the Chief of
Transport Act 1965 1637
Police for specified classes of motor vehicles by notice published as the Chief of
Police thinks fit.
(4) The owner of any motor vehicle who fails to affix any warrant of fitness
issued to him in the manner prescribed or removes any warrant that should be
affixed, commits an offence.
(5) The driver or the person in charge of the motor vehicle shall produce
any warrant of fitness not affixed to the motor vehicle, for inspection whenever
required to do so by any constable.
71 [Repealed by 1990/148]
72 Warrant of fitness for duly equipped motor vehicles
No warrant of fitness shall be issued under this Part unless the motor vehicle
for which the warrant is to be issued is equipped as required by this Act.
73 Offence against Part 8
(1) No person shall knowingly operate a motor vehicle in or on which a
warrant of fitness is required to be carried, if the motor vehicle is no longer so
equipped as to justify the issue of a warrant of fitness in terms of the warrant so
required to be carried.
(2) It shall be a defence in any proceedings for an offence against this section
or section 70(1) if the accused proves that the motor vehicle was being operated
solely for the purpose of obtaining a warrant of fitness.
74 Fees for warrants of fitness
There shall be payable to the testing authority for the issue of every warrant
of fitness such fees as Cabinet may prescribe by regulation.
75 Warrant of fitness to be delivered on sale of motor vehicle
Any person who sells a motor vehicle shall deliver to the purchaser at the
time of delivery of the motor vehicle any current warrant of fitness which is not
affixed to the motor vehicle.
76 Inspection of motor vehicles after accidents
The Chief of Police, if in his opinion any motor vehicle which has been
damaged in an accident, has thereby been rendered unsafe for use, may by notice
in writing given to the owner of the motor vehicle direct that the motor vehicle be
not operated until such repairs have been carried out as may be necessary for a
fresh warrant to be issued under this Part.
77 Traffic signs to be erected
PART 9
TRAFFIC SIGNS
The Chief of Police shall cause traffic signs to be erected in any public place where necessary for the operation of this Act.
78 Kind of traffic signs to be determined by Chief of Police
The Chief of Police may determine –
(a) The classes of traffic signs;
(b) The language of traffic signs;
(c) The description of any class of traffic sign;
(d) The material including reflecting material of traffic signs.
1638 Niue Laws 2006 Vol 3
79 Maintenance of traffic signs
The Chief of Police shall be responsible for the proper maintenance of every
sign.
80 Offences against Part 9
Every person who wilfully or negligently removes, defaces or damages
any traffic sign erected under this Part commits an offence.
PART 10
PUBLIC PLACES TO BE KEPT FREE FROM OBSTRUCTIONS
81 Trimming of hedges and trees on adjacent land
The Chief of Police may request any occupier of land adjacent to any public
place to cut or trim hedges, trees or other herbage on such land that he considers
dangerous to public safety or which obstructs a clear view of the public place.
82 Weeding on roads
(1) Every owner or occupier of land adjacent to any public road shall keep
the part of such road from the boundary of the land to the centre of the road at all
times reasonably clean and free from rubbish, weeds, fungoid growths and long
grass.
(2) Every such owner or occupier shall during the first week of the months of March, June, September and December in each and every year, execute such work as aforesaid.
83 Keeping public places tidy and safe
(1) No person shall deposit or throw on any public place –
(a) Rubbish of any kind;
(b) Glass or any other substance or matter likely to damage the tyres of
any vehicle.
(2) If any slippery substance or any piercing substance or glass falls from
any vehicle upon any public place, it shall be the duty of the driver of any vehicle
involved to remove or cause to be removed immediately that substance from the
public place.
PART 11
BICYCLES
84 Bicycles to comply with special requirements
Without limiting in any way the provisions of this Act relating to vehicles,
sections 85-94 shall apply with respect to bicycles.
85 Headlamps
No person shall ride a bicycle in any public place during the hours of
darkness unless it has attached at the front a lamp displaying a light substantially
white in colour of sufficient brilliance to be visible under normal atmospheric
conditions for at least 300 feet in a forward direction.
86 Rear reflectors
No person shall ride a bicycle in any public place –
(a) Unless it is fitted with an approved red reflector in a clean and
efficient condition or approved reflecting red tape not less than 8
square inches in area placed at the back of the bicycle so as to reflect
directly to the rear light shining towards it from the rearward of
the bicycle; or
Transport Act 1965 1639
(b) Unless it displays at the rear a white surface of at least 12 square inches (inclusive of the area taken up by an approved reflector) or approved reflecting red tape not less than 8 square inches in area maintained in a clean condition at a place where the surface or tape is not likely to be obscured by the rider or his clothes.
87 Prohibited lights
No person shall ride a bicycle in any public place if it is equipped with a
lamp that displays towards the rear any light other than a red light or with a lamp
or reflecting surface that displays towards the front any red or reddish light.
88 Brakes
No person shall ride a bicycle in any public place unless it is fitted with at
least one efficient brake which operates on the rear wheel.
89 Special equipment if infants are taken for a ride
No person shall ride a bicycle in any public place –
(a) Fitted with a pillion seat, unless adequate foot rests are fitted for
any infant carried on the pillion seat; or
(b) Fitted with any other seat or a container for the carriage of an infant,
unless the legs of the infant are adequately protected by guards
from coming into contact with the wheels of the bicycle.
90 Riding prohibited on footpaths and over cultivated land
No person shall ride a bicycle on any footpath or footway or on any lawn,
garden, or other cultivation forming part of a public place.
91 Towing prohibited
No person riding a bicycle in any public place shall permit the bicycle to be
towed by any other vehicle.
92 Warning signal before right-hand turn
Every person riding a bicycle when about to turn to his right in view of
other traffic shall before doing so give reasonable notice of his intention by
extending his full arm horizontally to the right.
93 Riding in batches restricted
Except when heavy traffic conditions make it unreasonable to do otherwise,
no person shall ride a bicycle so that –
(a) More than 2 bicycles remain abreast; or
(b) Two bicycles remain abreast while overtaking and passing any other
vehicle.
94 Dangerous riding
Every person commits an offence who rides a bicycle in any public place
recklessly or negligently or at a speed or in a manner which is dangerous to any
other person, having regard to the nature, condition, and use of the public place
and all other circumstances of the case.
1640 Niue Laws 2006 Vol 3
PART 12
PASSENGER SERVICES
95 No liquor on public transport
(1) No person shall consume or attempt to consume or cause any other
person to consume intoxicating liquor in or on any omnibus or vehicle serving for
the time being as an omnibus, taxicab or any other vehicles for the time being
designed, used, kept, or being available for the carriage for hire or reward of
members of the public.
(2) In this section “intoxicating liquor” has the same meaning as in the
Liquor Act 1975.
96 Speed limit for trucks carrying passengers
Notwithstanding anything in this Act no person shall drive a truck carrying
passengers, whether for hire or reward or otherwise, under any circumstances (be
it within the boundaries of any village or any area declared to be subject to speed
limits or outside such boundaries or areas) at a greater speed than 25 miles per
hour.
PART 13
MISCELLANEOUS PROVISIONS
98 Approval of equipment for a transition period and exemptions from
equipment requirements
(1) Cabinet may, by notice published as it directs and for any period of
time as it thinks fit –
(a) Approve of any equipment or type of equipment for use under this
Act and the use of any equipment so approved or of a type so
approved shall, while it is maintained in good working order and
any conditions of the approval are complied with, be deemed to be
a sufficient compliance with this Act;
(b) Grant exemption in respect of any specified class of vehicle from
any of the requirements relating to equipment prescribed by this
Act, subject to such conditions as it thinks fit to impose.
(2) Any approval so given and any exemption so granted may be at any
time withdrawn by Cabinet by notice as aforesaid.
99 Compensation for conversion
(1) (a) If any person is convicted of the offence of converting any vehicle
or part of it under section 188 of the Niue Act 1966, the court may
order the person so convicted to pay to the owner of the vehicle
destroyed or damaged, by way of compensation for the destruction
or damage, a sum not exceeding the amount of loss suffered by
him.
(b) The making or enforcement of an order as aforesaid shall not affect
the right of the owner or any other person to recover by civil
proceedings any damages in excess of the sum recovered under
the order.
(2) Any order for payment under this section may be enforced in the same
manner as a fine.
Transport Act 1965 1641
100 Unlawful interference with vehicle
Every person commits an offence and shall be liable to imprisonment for a
term not exceeding 3 months or a fine not exceeding 5 penalty units who unlawfully
and without colour of right interferes with or gets into or upon or attempts to get
into or upon any vehicle.
101 Power of Police
Every constable in uniform may –
(a) Direct the driver of any vehicle to stop his vehicle;
(b) Inspect, test and examine the brakes or any other part of any vehicle
or equipment of it;
(c) Move or cause to be moved to any place of safety at the expense of
the owner any vehicle if in the opinion of the constable it causes an
obstruction in any public place or has some mechanical defect likely
to impair its safe use in a public place or its removal is necessary
for any other reason;
(d) Generally take all steps necessary for the control of traffic in any
public place under this Act.
102 Offences
Every person commits an offence who –
(a) Fails to comply with a direction given under this Act by a constable,
the Registrar, the Testing Authority, or any other person authorised
to give directions under this Act;
(b) Wilfully obstructs any person in the execution of any duty imposed
on that person by this Act;
(c) Fails to comply with any condition, duty, or obligation imposed on
him by this Act;
(d) Does or omits, or causes or knowingly permits or suffers to be done
or omitted, any act, matter, or thing contrary to this Act;
(e) Offends against or fails to comply with this Act;
(f) Knowingly makes a substantially false statement in any application
or notice under this Act or in connection with any information which
he is required to furnish under this Act.
103 General penalties
Every person who commits an offence against this Act for which no penalty
is provided in this Act elsewhere than in this section or in the Niue Act 1966 is
liable to a fine not exceeding 1 penalty unit.
104 Act to bind the Crown
Except as provided in this Act, this Act shall bind the Crown.
105 [Spent]
106 Application of fees and fines
All fees, fines and other moneys received under this Act shall form part of
the public revenues of Niue and shall be paid into the appropriate account.
1642 Niue Laws 2006 Vol 3
107 Regulations
Cabinet may make all such regulations -
(a) As may seem necessary or expedient for giving full effect to this
Act and for its due administration;
(b) Prescribing fines, not exceeding 2 penalty units, for the breach of any regulations made under this Act.
Transport Act 1965 1643
Section 7
SCHEDULE
Form No. 1
Transport Act 1965
FORM OF APPLICATION FOR REGISTRATION OF MOTOR VEHICLE
To the Registrar of Motor Vehicles:
I apply for registration of the motor vehicle particulars of which are given below: Name of Owner:
Address:
Class of motor vehicle:
Make of motor vehicle:
Engine No.:
Chassis No.:
Seating Accommodation: * persons
Intended for –
Private use; or
Conveyance of passengers for hire; or
Conveyance of goods; or
Conveyance of passengers for hire and goods
Gross weight of motor vehicle unladen: ** lbs
Manufacturer ’s rating of weight carrying capacity: lbs
Dated this day of 20 .
................................................................................................................... (Signature of owner)
*Not required for motor or power cycles
**Not required for motor cycle, power cycle or private motor cars
1644 Niue Laws 2006 Vol 3
Section 9
Form No 2
Transport Act 1965
CERTIFICATE OF REGISTRATION OF MOTOR VEHICLE
This is to certify that the motor vehicle, particulars of which are given below, has been registered under the above Act
Name of Owner: Address:
Class of motor vehicle: Make of motor vehicle: Engine No.:
Chassis No.:
Description of Motor Vehicle
Seating Accommodation: * persons
Intended for –
Private use; or
Conveyance of passengers for hire; or
Conveyance of goods; or
Conveyance of passengers for hire and goods
Gross weight of motor vehicle unladen: lbs
Manufacturer ’s rating of weight carrying capacity: lbs
Registration No:
(a) Number of persons, excluding the driver, which the vehicle may lawfully
carry at any one time;
(b) Maximum weight of goods, or passengers, or both, which the vehicle
may lawfully carry.
Dated this this day of 20 .
........................................................................................................ Registrar of Motor Vehicles
Transport Act 1965 1645
Section 14
Form No 3
Transport Act 1965
FORM OF APPLICATION FOR ANNUAL LICENCE TO USE MOTOR VEHICLE
To the Registrar of Motor Vehicles:
I apply for a licence to use the motor vehicle particulars of which are given below:
|
Name of Owner: | |||||
|
Address: | |||||
|
Class of motor vehicle: | |||||
|
Make of motor vehicle: | |||||
|
Engine No: | |||||
|
Chassis No: | |||||
|
Seating Accommodation: * |
persons | ||||
|
Intended for – | |||||
|
Private use; or | |||||
|
Conveyance of passengers for hire; or | |||||
|
Conveyance of goods; or | |||||
|
Conveyance of passengers for hire and goods | |||||
|
Gross weight of motor vehicle unladen: |
** |
lbs | |||
|
Manufacturer ’s rating of weight carrying capacity: |
lbs | ||||
|
Registration No. | |||||
|
Dated at |
this |
day of |
20 |
. |
................................................................................................................... (Signature of owner)
*Not required for motor or power cycles
**Not required for motor cycles, power cycles or private motor cars
1646 Niue Laws 2006 Vol 3
Section 16
Form No 4
Transport Act 1965
ANNUAL LICENCE TO USE MOTOR VEHICLE
The motor vehicle, particulars of which are set out hereunder, may, in accordance with the above Act, be used on any road on Niue while this licence continues in force.
Name of Owner: Address:
Class of motor vehicle: Make of motor vehicle: Engine No:
Chassis No:
Description of Motor Vehicle
Seating Accommodation: persons
Intended for –
Private use; or
Conveyance of passengers for hire; or
Conveyance of goods; or
Conveyance of passengers for hire and goods
Gross weight of motor vehicle unladen: lbs
Manufacturer ’s rating of weight carrying capacity: lbs
Registration No:
If trade motor –
(a) Number of persons, excluding the driver, which the vehicle may lawfully
carry at any one time;
(b) Maximum weight of goods, or passengers, or both, which the vehicle
may lawfully carry.
Subject to the provisions of the Transport Act, this licence shall continue in force until 31
March 20 .
Dated at this day of 20 .
........................................................................................................ Registrar of Motor Vehicles
Transport Act 1965 1647
Section 20
Form No. 5
Transport Act
APPLICATION FOR A MOTOR DRIVER’S LICENCE
To the Registrar of Motor Vehicles:
I apply for the issue to me of a motor driver ’s licence under the Transport Act in respect of a motor vehicle of the following class (classes):
And I declare that to the best of my knowledge and belief the particulars here set forth are true and correct.
Full name of applicant: Place of residence: Occupation:
Class or classes of motor vehicles in respect of which a driver ’s licence is applied for: Is applicant above the age of 16 years?
If applicant has been the holder of any licence to drive a motor vehicle give particulars as to –
Name of authority by whom licence issued:
Date of issue:
Remarks:
Has applicant ever been refused a motor driver ’s licence?
If so, give particulars:
Has applicant ever been convicted of any offence arising out of the driving of any motor
vehicle?
What is applicant’s experience of motor driving?
Dated at this day of 20 .
................................................................................................................ Signature of Applicant
1648 Niue Laws 2006 Vol 3
Section 22
Form No. 6
Transport Act MOTOR DRIVER’S LICENCE No
To be produced on demand
Name of Licensee: m/f Date of birth: Address:
Occupation:
This licence applies only to (insert class or classes of motor vehicle)
This licence expires on the day of 20.
Date of issue:
Signature of Registrar:
Signature of Licensee:
Transport Act 1965 1649
Section 70
Form No. 7
Transport Act 1965
WARRANT OF FITNESS
To be retained by Testing Authority
No. Make:
Regd No.:
Speedometer Reading:
Name of Owner: Address:
Date of examination: / /
........................................................................................................................................................
Signature of Testing Authority
To be issued to Owner
(Front)
Warrant of Fitness No. (Month of issue in letters) (Month of expiry in figures)
(Back) No.:
Issued by:
Regd No. and Make:
........................................................................................................................................................ Expiry date: ........................ / ........... / .........
1650 Niue Laws 2006 Vol 3
1651
TRUSTEE ACT 1956
1956/61 (NZ) – 1 January 1957
1 Short title
PART 1
PRELIMINARY
Indemnities
34 Protection against liability in respect of
rents and covenants
34A Lien on policy money for premiums
2 Interpretation and application
3 Act to bind Crown
PART 2
INVESTMENTS
4 Power to invest
5-13 [Repealed]
PART 3
GENERAL POWERS AND INDEMNITIES OF TRUSTEES
General Powers
14 Powers to sell, exchange, partition,
postpone, lease, purchase
15 Miscellaneous powers
16 Power of trustee for sale to sell
17 Power to sell property on terms
18 Sale subject to depreciatory conditions
19 Power of trustees to give receipts
20 Power to compound liabilities
21 Power to raise money by sale or mortgage
22 Protection of purchasers
23 Devolution of powers or trusts
24 Power to insure
25 Application of insurance money where
policy kept up under any trust, power or
obligation
26 Deposit of documents for safe custody
27 Reversionary interests
28 Valuations
29 Power to employ agents
30 Power to concur with others
31 Power to delegate trusts
32 Power to carry on business
33 Power to convert business into a company
33A Trustee may sue himself in a different
capacity
35 Protection against creditors
36 Protection in regard to notice
37 Exoneration of trustees in respect of certain
powers of attorney
38 Implied indemnity of trustees
39 Protection of trustee who pays trust money
to bankrupt
39A Protection of trustee in handing over
chattels to life tenant
39B Protection of trustee in handing over
chattels to infant
Maintenance, Advancement and Protective Trusts
40 Power to apply income for maintenance
41 Power to apply capital for maintenance
41A Conditional advances for maintenance
42 Protective trusts
PART 4
APPOINTMENT AND DISCHARGE OF TRUSTEES
43 Power of appointing new trustees
44 Evidence as to a vacancy in a trust
45 Retirement of trustee
46 Discharge of trustee
47 Vesting of trust property in new or
continuing trustees
48 Corporations acting as trustees
49 Advisory trustees
50 Custodian trustees
PART 5
POWERS OF THE COURT
Appointment of New Trustees
51 Power of Court to appoint new trustees
Vesting Orders
52 Vesting orders of land
1652 Niue Laws 2006 Vol 3
53 Contingent rights of unborn persons
54 Vesting order in place of conveyance by
infant mortgagee
55 Vesting order consequential on order for
sale or mortgage of land
56 Vesting order consequential on judgment
for specific performance
57 Effect of vesting order
58 Power to appoint person to convey
59 Vesting orders as to stock and things in
action
60 Vesting orders in respect of shares in ships
and industrial property
61 Vesting orders of charity property
62 Orders made upon certain allegations to be
conclusive evidence
63 [Repealed]
Jurisdictions to Make Other Orders
64 Power of Court to authorise dealings with
trust property and variations of trust
64A Powers of Court to authorise variations
65 [Repealed]
66 Right of trustee to apply to Court for
directions
67 Persons entitled to apply to Court
68 Applications to Court to review acts and
decisions of trustee
69 Protection of trustee while acting under
direction of Court
70 Powers of Court to give judgment in
absence of a trustee
71 Power of Court to charge costs
72 Commission
73 Power to relieve trustee from personal
liability
74 Power to make beneficiary indemnify for breach of trust
75 Barring of claims
76 Distribution of shares of missing
beneficiaries
76A Service of notices under sections 75 and 76
Payment to Crown
77 Payment by trustees to Crown
78 Disposal of funds paid to Crown
79 Orders in respect of funds paid to Crown
PART 6
GENERAL PROVISIONS
80 Indemnity to banks and others
81 Operation on bank account of trustees
82 [Repealed]
83 Special rules as to apportionment
83A Examination of accounts of trust estates
administered by trustee corporations
83B Audit of other trust estates
84 Costs and testamentary expenses to be
payable out of capital of settled residuary
estate of deceased
85 Application of income of settled property
pending conversion
86 Fees and commission deemed a
testamentary expense
87 Costs of inquiring regarding beneficiaries
88 Life tenant to have powers of a trustee in
certain cases
89 [Spent]
90 Regulations
To consolidate and amend the law relating to trusts and trustees
1 Short title
This is the Trustee Act 1956.
PART 1
PRELIMINARY
2 Interpretation and application
(1) In this Act –
“authorised investments” means investments authorised for the investment
of money subject to the trust by the instrument, if any, creating the
trust or by this Act or any other Act;
“Bank” means a bank licensed under the Banking Act 1986;
“benefit”, in relation to any person, includes insurance on the life of that
person;
“contingent right” as applied to land includes a contingent or executory
interest, a possibility coupled with an interest, whether the object of
Trustee Act 1956 1653
the gift or limitations of the interest or possibility is or is not ascertained, also a right of entry, whether immediate or future, and whether vested or contingent;
“conveyance”, as applied to any person, includes the execution by that person of every necessary or suitable assurance for conveying, transferring, assigning, appointment, surrendering, or otherwise disposing of land whereof he is seized or possessed, or wherein he is entitled to a contingent right, either for his whole estate, or for any less estate, together with the performance of all formalities required by law for the validity of the conveyance;
“income” includes rents and profits other than profits which under any rule of law are in the nature of capital;
“instrument” includes an Act;
“land” includes land of any tenure, and mines and minerals, whether or
not severed from the surface, buildings or parts of buildings, whether
the division is horizontal, vertical, or made in any other way, and any
other corporeal hereditament; and also includes a rent and other
incorporeal hereditaments, and an easement, right, privilege, share,
interest, or benefit in, over, or derived from land; and in this definition
“mines and minerals” includes any strata or seams of minerals or
substances in or under any land, and powers of working and getting
the same; and in this definition “hereditaments” means real property
which under an intestacy might at common law have devolved on an
heir;
“lease” includes a bailment;
“mortgagee” includes every person having an estate or interest regarded
at law or in equity as merely a security for money; and also includes
every person deriving title to the mortgage under the original
mortgagee;
“payment”, in relation to stocks and securities, includes the deposit or
transfer of the same;
“personal representative” means the executor, original or by representation,
or an administrator for the time being of a deceased person;
“possession” includes receipt of income or the right to receive the same, if
any; and “possessed” applies to receipt of income of and to any vested
estate less than a life interest, at law or in equity, in possession or in
expectancy in any land;
“property” includes real and personal property, and any estate, share, and
interest in any property, real or personal, and any debt, and any thing
in action, and any other right or interest, whether in possession or not;
“registrar” means the Registrar of the Court for the district in which any
proceeding is taken or anything is done under this Act, and includes a
Deputy Registrar where there is no Registrar, or in any case where the
Deputy may lawfully act for and on behalf of the Registrar;
“rent” includes a rent service or a rentcharge, or other rent, toll, duty, royalty,
or annual or periodical payment in money or money’s worth reserved
or issuing out of or charged upon land, but does not include mortgage
interest;
“right” includes an estate or interest;
“sale” includes an exchange;
“securities” includes stock, funds, and shares; and “securities payable to
bearer” includes securities transferable by delivery or by delivery and
endorsement;
1654 Niue Laws 2006 Vol 3
“stock” includes Government securities, and shares; and, so far as relates to vesting orders made by the Court under this Act, includes any fund, money, annuity, or security transferable in books kept by any corporation or society, or by instrument of transfer either alone or accompanied by other formalities, and any share or interest in it;
“transfer”, in relation to stock or securities, includes the performance and
execution of every deed, power of attorney, act, and thing on the part
of the transferor to effect and complete the title in the transferee;
“trust” does not include the duties incidental to an estate conveyed by
way of mortgage, but with this exception it extends to implied and
constructive trusts, and to cases where the trustee has a beneficial
interest in the trust property, and to the duties incidental to the office of
an administrator within the meaning of the Administration Act 1952;
“trust for sale”, in relation to land, means an immediate binding trust for
sale, whether or not exercisable at the request or with the consent of
any person, and with or without power at discretion to postpone the
sale;
“trustee for sale” means the person (including a personal representative)
holding land on trust for sale.
(2) For the purposes of this Act a person shall be deemed to be under a
disability while he is not of full age or full mental capacity.
(3) This Act, except where otherwise expressly provided, applies to trusts
constituted or created either before or after the commencement of this Act.
(4) The powers conferred by or under this Act on a trustee who is not a
corporation are in addition to the powers given by any other Act and by the
instrument, if any, creating the trust; but the powers conferred on the trustee by
this Act, unless otherwise stated, apply if and so far only as a contrary intention is
not expressed in the instrument, if any, creating the trust, and have effect subject
to the terms of that instrument.
(5) The powers conferred by or under this Act on a trustee that is a
corporation are in addition to the powers given by the instrument, if any, creating
the trust and to the powers given by or under the Act or any instrument by or
under which the corporation is constituted and any other Act; but the powers
conferred on the trustee by this Act, unless otherwise stated –
(a) Apply if and so far only as a contrary intention is not expressed in
the instrument, if any, creating the trust, and have effect subject to
the terms of that instrument;
(b) (i) Apply if and so far only as a contrary intention is not expressed
in the Act or any instrument by or under which the corporation
is constituted and any other Act and have effect subject to the
terms of every such Act and instrument;
(ii) Nothing in this paragraph shall affect any Act which applies to
all trustees, whether corporations or not.
3 Act to bind Crown
This Act shall bind the Crown.
Trustee Act 1956 1655
4 Power to invest
PART 2
INVESTMENTS
(1) A trustee may invest any trust funds, whether at the time in a state of investment or not, in any property.
(2) Subject to subsections (3) and (4), a trustee exercising any power of
investment shall exercise the care, diligence, and skill that a prudent person of
business would exercise in managing the affairs of others.
(3) Subject to subsection (4), where a trustee’s profession, employment, or
business is or includes acting as a trustee or investing money on behalf of others,
the trustee, in exercising any power of investment, shall exercise the care, diligence,
and skill that a prudent person engaged in that profession, employment, or business
would exercise in managing the affairs of others.
(4) The duty imposed on a trustee by subsection (2) or (3) shall apply to a
trustee if and so far only as a contrary intention is not expressed in the instrument,
if any, creating the trust or any Act, and shall have effect subject to the terms of
that instrument or Act.
5-13 [Repealed by 2004/270]
PART 3
GENERAL POWERS AND INDEMNITIES OF TRUSTEES
General Powers
14 Powers to sell, exchange, partition, postpone, lease, purchase
(1) Subject to this section, every trustee may exercise the following powers
in respect of any property for the time being vested in him –
(a) Sell the property;
(b) Dispose of the property by way of exchange for other property in
Niue of a like nature and a like or better tenure, or, where the
property vested in him consists of an undivided share, concur in
the partition of the property in which the share is held, and give or
take any property by way of equality of exchange or partition;
(c) Postpone the sale, calling in, and conversion of the property, whether
or not it is of a wasting, speculative or reversionary nature:
Provided that nothing in this paragraph shall permit a trustee to
postpone the sale, calling in, or conversion of any property of a
wasting or speculative nature for longer than is reasonably
necessary to permit its prudent realisation;
(d) Let or sublet the property at a reasonable rent for any term not
exceeding one year, or from year to year, or for a weekly, monthly,
or other like tenancy, or at will;
(e) Grant a lease or sublease of the property for any term not exceeding
21 years to take effect in possession within one year next after the
date of the grant of the lease or sublease at a reasonable rent, with
or without a fine, premium or foregift:
Provided that where a fine, premium or foregift is taken, the amount
of it shall be deemed to be part of and an accretion to the rental,
and shall, as between the persons beneficially entitled to the rental,
be considered as accruing from day to day and be apportioned over
the term of the lease or sublease;
(f) At any time during the currency of a lease of the property, reduce
the rent or otherwise vary or modify the terms of it;
1656 Niue Laws 2006 Vol 3
(g) In the case of property subject to a lease, grant to a sublessee (with the consent of the lessee) a lease direct from the trustee of the whole or any part of the land comprised in the original lease for the residue of the original term.
(2) Any trustee may purchase land in Niue in any of the following cases – (a) If the land being purchased adjoins other land which the trustee has power to retain and which is held by the trustee on the same trusts as the money expended in respect of the purchase of the land,
and the amount so expended does not exceed $2000;
(b) If the land being purchased has a dwellinghouse on it and is required
exclusively or principally as a home for the person entitled to the
income of the money being expended in respect of the purchase.
(2A) Any trustee may erect a dwellinghouse on land that is subject to the
same trusts as the money being expended in respect of the erection, or may
purchase land in Niue and erect a dwellinghouse on it, if the dwellinghouse and
land are required exclusively or principally as a home for the person entitled to
the income of the money being expended in respect of the erection or the purchase
and erection, as the case may be.
(2B) In any case where a trustee is authorised by or under this Act or any
other enactment, or by the instrument creating the trust, to provide or acquire a
home for any person, he shall have power, in addition to any authority so
conferred –
(a) To acquire a flat or apartment or the right to occupy a flat or
apartment by any means which he may consider appropriate
(whether by acquiring shares in a limited liability company or an
undivided share or interest in the land on which the premises are
erected or in any other way); and
(b) To enter into any lease, licence, agreement, or other arrangement
under which he or his nominee or the beneficiary who is to occupy
the flat or apartment has the right to occupy it (including an
arrangement whereby any shares in a limited liability company and
the benefit of any such lease, licence, or agreement may be held by
that beneficiary or by some other nominee or the trustee upon trust
for him).
(3) Any trustee may accept or concur or join with any other person in
accepting a lease or sublease of any property on such terms and subject to such
covenants and conditions as he thinks fit; and may surrender or concur or join
with any other person in surrendering any lease or sublease; and, if lessor or
sublessor, may accept or concur or join in with any other person in the acceptance
of the surrender of any lease or sublease.
(4) Any trustee may, on such conditions as he thinks proper, rescind or
cancel or modify or vary any contract or agreement for the sale and purchase of
any land, or agree to do so, or compromise with or make allowances to any person
with whom such contract or agreement has been made, or who is the assignee of
it in respect of any unpaid purchase money secured on mortgage or otherwise.
(5) In exercising any power of leasing or subleasing conferred by this section
or by the instrument (if any) creating the trust, a trustee may –
(a) Grant to the lessee or sublessee a right of renewal for one or more
terms at a rent to be fixed or made ascertainable in a manner
specified in the original lease or the original sublease, but so that
the aggregate duration of the original and of the renewed terms
shall not exceed the maximum single term that could be granted in
exercise of the power;
Trustee Act 1956 1657
(b) Subject to this section, grant a lease with an optional or compulsory purchasing clause:
Provided that this power shall not apply to the exercise of any power of sale conferred by any mortgage unless the mortgage confers authority to do so;
(c) Grant to the lessee or sublessee a right to claim compensation for
improvements made or to be made by him in, upon, or about the
property which is leased or subleased.
(6) (a) No trustee shall, without the consent of the Court, exercise any
power conferred on him by this section of granting a lease with an
optional or compulsory purchasing clause, or of selling or
exchanging any freehold and, in any case where the value of land
(as determined under section 28) exceeds $15,000.
(b) A trustee may, without the consent of the Court, sell any such land
for more than $15,000 in exercise of the powers conferred on him
by this section, if (under section 28) he has in good faith fixed the
value of the land immediately before the sale at $15,000 or less.
(6A) Where a person dies intestate as to any personal chattels within the
meaning of the Administration Act 1969 and leaves a husband or wife, the trustee
of his estate shall not, without the consent of the Court or of the husband or wife,
sell those chattels, unless a sale is required for purposes of administration owing
to want of other assets.
(6B) Where upon inquiry the Court is satisfied that a partition of the real
estate of a deceased person would be advantageous to the parties interested in it,
the Court may order a partition or may appoint one or more arbitrators to effect a
partition, and to exercise in regard to it, under its directions and control, such
powers as it thinks fit; and if the report and final award of the arbitrator are
approved by the Court, the trustee shall, by conveyance or transfer, give effect to
the same accordingly.
(7) (a) Where there is a power (statutory or otherwise) to postpone the
sale of any land or authorised investment that a trustee has a duty
to sell by reason only of a trust or direction for sale, then (subject to
any express direction to the contrary in the instrument, if any,
creating the trust), the trustee shall not be liable in any way merely
for postponing the sale, in the exercise of his discretion, for an
indefinite and unlimited period, whether or not that period exceeds
the period during which the trust or direction for sale remains valid;
nor shall a purchaser of the land or authorised investment be
concerned in any case with any directions respecting the
postponement of a sale;
(b) This subsection shall not apply to any property of a wasting or
speculative nature.
15 Miscellaneous powers
(1) Every trustee may exercise the following powers in respect of any
property for the time being vested in him –
(a) Expend money subject to the same trusts for the repair, maintenance,
upkeep, or renovation of the property, whether or not the work is
necessary for the purpose of the salvage of the property; and (subject
to the rules of law applicable in such cases and to any direction of
the court to the contrary) apportion the cost of the work between
capital and income or otherwise among the persons entitled thereto
1658 Niue Laws 2006 Vol 3
in such manner as he considers equitable, with power, in any case where the whole or part of the cost of the work is charged to capital, to recoup capital from subsequent income if such a course would be equitable having regard to all the circumstances of the case;
(b) Expend money subject to the same trusts in the improvement or development of the property or in improving his title to the property or his tenure thereof, whether by the acquisition of an interest in reversion or otherwise:
Provided that, in exercise of the power conferred by this paragraph,
not more than $10,000 may be so expended by a trustee without the
consent of the Court for any one purpose.
(c) Where the property is land and the land may be sold or let or leased
or otherwise disposed of under any power or trust vested in the
trustee, subdivide the land into sections and for that purpose
construct and dedicate all such roads, streets, access ways, service
lanes, and footpaths and make all such reserves, and do all such
other things, and pay all such money, as he thinks necessary or as
are required by any law or bylaw relating to subdivisions;
(d) Contribute out of money subject to the same trusts such sum as he
thinks reasonable towards the construction and maintenance of such
roads, streets, access ways, service lanes, and footpaths, and such
sewerage, water, electricity, drainage and other works as are in the
opinion of the trustee likely to be beneficial to the property,
notwithstanding that they are intended to be constructed wholly
or in part on land not subject to the same trusts;
(e) Grant easements and profits à prendre and enter into party wall
agreements and agreements which relate to fencing and execute all
necessary documents to give effect to it;
(f) Pay rates, taxes, assessments, insurance premiums, and other
outgoings in respect of the property out of money subject to the
same trusts;
(g) As mortgage or mortgagee, agree to the renewal, extension, or
variation of the mortgage for such period and on such terms and
conditions as he thinks fit:
Provided that the powers conferred by this paragraph may be
exercised by a trustee as mortgagor for the purpose of raising
additional money on the security of a mortgage of any property in
any case where the trustee would have power under section 21 to
raise money by a mortgage of the property, but not otherwise:
Provided also that nothing in this paragraph shall authorise any
trustee to advance any money on the security of any mortgage that
would not be an authorised investment in respect of the amount
advanced;
(h) Make such inquiries, by way of advertisement or otherwise, as he
deems necessary for the purposes of ascertaining the next-of-kin or
beneficiaries entitled to the property, and charge the cost of the
inquiries and advertisements against the property;
(i) Where the property includes a life policy and there is no money or
insufficient money available for the payment of premiums on the
policy, surrender the policy for money, or accept instead of the policy
a fully paid up policy, or vary the terms of the policy in such manner
as the trustee thinks fit;
Trustee Act 1956 1659
(j) Appropriate any part of the property in or towards satisfaction of any legacy payable or any share (whether settled, contingent or absolute) to which any person is entitled, and for that purpose value the whole or any part of the property under section 28 of this Act: Provided that before any such appropriation is effectual notice thereof shall be given to all persons of full age and full mental capacity who are interested in the appropriation, and any such person may within one calendar month after receipt of the notice apply to the Court to vary the same, and the appropriation shall be conclusive save as otherwise directed by the Court:
Provided also that where the person interested is out of the jurisdiction the said period of one month may be extended by the court for such period as the Court thinks fit, on the application of the trustee or of any person interested;
(k) Where provision is made in any instrument creating a trust for
payment of annuity or other periodical payment, and
notwithstanding that the annuity or payment may by the instrument
be charged upon the trust property or upon any part of it, set aside
and appropriate out of property available for payment of the annuity
and invest a sum sufficient in the opinion of the trustee at the time
of the appropriation to provide out of the income of it the amount
required to pay the annuity or periodical payment, and, after the
appropriation shall have been made, the residue of the trust
property and the income of it shall no longer be liable for the annuity,
and may be distributed forthwith under the trusts declared of and
concerning the same;
(l) Do or omit all acts and things and execute all instruments necessary
to carry into effect the powers and authorities given by this Act or
by or under the instrument creating the trust.
(2) (a) Where in the administration of any property employed in the
production of income or from which income is derived a trustee
considers that in the interests of the persons entitled or who may
become entitled to the capital of the property it is equitable to set
up a depreciation or replacement fund in respect of the property or
in respect of any asset comprised in it, then, notwithstanding any
rule of law to the contrary, it shall be lawful for but not obligatory
upon him to do so, and to credit to the fund and accumulate by
way of compound interest such part of the income so produced or
derived as he considers equitable and also the resulting income
from it.
(b) In any such case the fund shall follow the destination of the capital
of the property and shall be subject to all the trusts, powers, and
provisions applicable to it; with further power to the trustee to apply
as he thinks fit the fund and accumulations of income in or towards
the replacement, repair or otherwise of property or assets of a like
nature or which otherwise may advantageously be employed in
conjunction with the property in producing or deriving the income
as aforesaid.
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16 Power of trustee for sale to sell
(1) Where a trust for sale or a power of sale of property is vested in a trustee,
he may sell or concur with any other person in selling all or any part of the property,
either subject to prior encumbrances or not, and either together or in lots, by public
auction or by public tender or by private contract, subject to any such conditions
respecting title or evidence of title or other matters as the trustee thinks fit, with
power to vary any contract for sale, and to buy in at any auction, or to rescind any
contract for sale and to resell, without being answerable for any loss.
(2) A trust or power to sell or dispose of land includes a trust or power to
sell or dispose of part of it; whether the division is horizontal, vertical, or made in
any other way; and also includes a trust or power to sell or dispose of any buildings,
fixtures, timbers, or other things affixed to the soil apart and separately from the
land itself.
(3) In exercise of any power of sale in respect of several properties held
under one lease, the trustee may sell the properties separately on the terms that
one of the purchasers shall take an assignment of the lease and grant subleases to
the other purchasers, and that if any part of the property is not sold the trustee
shall retain the lease and grant subleases of the portions sold.
(4) Where a trustee may sell any property at a fixed or specified time under
any trust or power vested in him, the trustee may, with the consent of the persons
(if any) entitled to sell the possession of it pending the sale of the property, sell the
property at any time before the date originally appointed.
17 Power to sell property on terms
(1) A sale of property by a trustee in exercise of any power vested in him
in that behalf by the instrument creating the trust or by or under this Act or any
other enactment may be on terms of deferred payment or otherwise.
(2) The terms of deferred payment shall be such as a person acting with
prudence would, if the property were his own, have accepted in the circumstances
in order to sell the property to the best advantage, and, subject to it, may provide
for the payment of the purchase money or any part thereof under an agreement
for sale or for the conveyance of the property sold and the securing of the unpaid
purchase money by mortgage of the property sold.
(3) Whether the sale is made under the order of the Court or otherwise,
the Court may make such order as it thinks fit as to the terms of deferred payment.
(4) A trustee selling property on terms authorised by this section or by an
order of the Court shall not be affected by section 4 or section 10 in respect of so
much of the purchase money as is payable under an agreement for sale or is secured
by a mortgage, and shall not be liable for any loss that may be incurred by reason
only of the security being insufficient at the date of the agreement or mortgage.
(5) For the purposes of any consent or direction required by the instrument,
if any, creating the trust or by statute, a trustee selling property on terms of deferred
payment shall not be deemed to be lending money or investing trust funds.
18 Sale subject to depreciatory conditions
(1) No sale made by a trustee shall be impeached by any beneficiary upon
the ground that any of the conditions subject to which the sale was made may
have been unnecessarily depreciatory, unless it also appears that the consideration
for the sale was thereby rendered inadequate.
(2) No sale made by a trustee shall, after the execution of the conveyance
or transfer, be impeached as against the purchaser upon the ground that any of
the conditions subject to which the sale was made may have been unnecessarily
Trustee Act 1956 1661
depreciatory, unless it appears that the purchaser was acting in collusion with the trustee at the time when the contract for sale was made.
(3) No purchaser, upon any sale made by a trustee, shall be at liberty to make any objection against the title upon any of the grounds aforesaid.
19 Power of trustees to give receipts
(1) The receipt in writing of a trustee for any money, securities, or other
personal property or effects payable, transferable, or deliverable to him under
any trust or power shall be a sufficient discharge to the person paying, transferring,
or delivering the same, and shall effectually exonerate that person from seeing
the application or being answerable for any loss or misapplication of it.
(2) This section applies notwithstanding anything to the contrary in the
instrument, if any, creating the trust.
20 Power to compound liabilities
A trustee may, if and as he thinks fit –
(a) Accept any property, real or personal, before the time at which it is
made transferable or payable; or
(b) Sever and apportion any blended trust funds or property; or
(c) Pay or allow any debt or claim on any evidence that he thinks
sufficient; or
(d) Accept any composition or any security, real or personal, for any
property, for any debt or for any property, real or personal, claimed;
or
(e) Allow any time for payment of any debt; or
(f) Surrender any leasehold property subject to onerous covenants of
such a nature that it would not be to the advantage of the person
beneficially interested to retain the property; or
(g) Compromise, compound, abandon, submit to arbitration, or
otherwise settle any debt, account, claim, or thing whatever relating
to the trust or to the trust property –
and for any of those purposes may enter into, give, execute, and do such
agreements, instruments of composition or arrangement, releases, and other things
as to him seem expedient, without being responsible for any loss occasioned by
any act or thing so done by him in good faith.
21 Power to raise money by sale or mortgage
(1) Where a trustee is authorised by the instrument, if any, creating the
trust or by this Act or any other Act or by law to pay or apply capital money
subject to the trust for any purpose or in any manner, he shall have and shall be
deemed always to have had power to raise the money required by sale, conversion,
calling in, or mortgage of all or any part of the trust property for the time being in
possession.
(2) Without restricting the generality of subsection (1), the power conferred
on the trustee by this section to raise any money that is required as aforesaid by
the sale, conversion, calling in, or mortgage of all or any part of the trust property
for the time being in possession shall extend and be deemed always to have
extended so as to confer on the trustee power so to raise money required for the
purpose of meeting any debt or other liability of the trustee, whether secured or
unsecured and whether owing or incurred at or before the commencement of the
trust or subsequently.
1662 Niue Laws 2006 Vol 3
22 Protection of purchasers
Where an instrument is made or executed in professed exercise of the power
to sell, exchange, lease, or mortgage conferred by the instrument (if any) creating
the trust or by this Act or any other Act, the title of the purchaser, transferee,
lessee, or mortgagee shall not be impeachable except on the ground of fraud, or
be affected on the ground that no case has arisen to authorise the sale, exchange,
lease, or mortgage, or that the power was otherwise improperly or irregularly
exercised; but any person damnified by an authorised or improper or irregular
exercise of the power shall have his remedy in damages against the person
exercising the power, and no purchaser, transferee, lessee, or mortgagee shall be
concerned to see to the application of the money paid by him, or be responsible
for the misapplication of it.
23 Devolution of powers or trusts
(1) Where a power or trust is given to or imposed on 2 or more trustees
jointly, the same may be exercised or performed by the survivors or survivor of
them for the time being.
(2) (a) Until the appointment of a new trustee, the personal representative
for the time being of a sole trustee or (where there were 2 or more
trustees) of the last surviving or continuing trustee shall be capable
of exercising or performing any power or trust which was given to,
or capable of being exercised by, the sole or last surviving or
continuing trustee, or other the trustees for the time being of the
trust;
(b) In this subsection “trustee” does not include a personal
representative as such.
(3) This section does not authorise the exercise or performance of any power
or trust by an executor who has renounced or has not proved.
24 Power to insure
(1) A trustee may insure against loss or damage, whether by fire or
earthquake or otherwise, any building or other insurable property to any amount,
including the amount of any insurance already on foot, not exceeding the full
insurable value of the building or property, or (with the consent of the person
entitled to the income of the Court) the full replacement value of the building or
property; and may also insure against any risk or liability against which it would
be prudent for a person to insure if he were acting for himself; and may pay the
premiums for the insurance out of the income of the building or property concerned
or out of the income of any other property subject to the same trusts without
obtaining the consent of any person who may be entitled wholly or partly to that
income.
(2) The trustee may recover the costs of any premiums paid in respect of
any such insurance from the life tenant or other person entitled to or in receipt of
the rents and profits of the building or property concerned.
(3) Nothing in this section shall impose any obligation on a trustee to insure.
25 Application of insurance money where policy kept up under any trust, power or obligation
(1) Money receivable by a trustee or any beneficiary under a policy of insurance against the loss of or damage to any property subject to a trust, whether by fire or otherwise, shall, where the policy has been kept up under any trust in that behalf or under any power, statutory or otherwise, or in performance of any
Trustee Act 1956 1663
covenant or of any obligation, statutory or otherwise, or by a tenant for life impeachable for waste, be capital for the purposes of the trust, except so far as it would be regarded as income under any rule of law.
(2) If any such money is receivable by any person other than the trustee of the trust, that person shall use his best endeavours to recover and receive the money, and shall pay the net residue of it, after discharging any costs of recovering and receiving it, to the trustee of the trust, or, if there is no trustee capable of giving a discharge for it, to the Crown under section 77.
(3) Any such money
(a) If it was receivable in respect of property held upon trust for sale,
shall be held upon the trusts and subject to the powers and
provisions applicable to money arising by a sale under the trust;
(b) In any other case, shall be held upon trust corresponding as nearly
as may be with the trusts affecting the property in respect of which
it was payable.
(4) Any such money, or any part thereof, may also be applied by the trustee,
or, if held by the Crown, under the direction of the Court, in rebuilding, reinstating,
replacing, or repairing the property lost or damaged, but any such application by
the trustee shall be subject to the consent of any person whose consent is required
by the instrument, if any, creating the trust to the investment of money subject to
the trust.
(5) Nothing in this section shall prejudice or affect the right of any person
to require any such money or any part thereof to be applied in rebuilding,
reinstating, or repairing the property lost or damaged, or the rights of any
mortgagee, lessor, or lessee, whether under any statute or otherwise.
(6) This section applies to policies effected either before or after the
commencement of this Act, but only to money received after the commencement.
26 Deposit of documents for safe custody
A trustee may deposit any documents held by him relating to the trust, or
to the trust property, with any bank or corporation whose business includes the
undertaking of the safe custody of documents, and any sum payable in respect of
any such deposit shall be paid out of the income of the trust property, and so far as
there is no available income out of the capital of the trust property.
27 Reversionary interests
(1) Where trust property includes any share or interest in property not
vested in the trustee, or the proceeds of the sale of any such property, or any other
thing in action, the trustee, on the same falling into possession or becoming payable
or transferable, may –
(a) Agree or ascertain the amount or value of it or any part of it in such
manner as he may think fit;
(b) Accept in or towards satisfaction of it, at the market or current value,
or upon any valuation or estimate of value which he may think fit,
any authorised investments;
(c) Allow any deductions for duties, costs, charges, and expenses which
he may think proper or reasonable;
(d) Execute any release in respect of the premises so as effectually to
discharge all accountable parties from all liability in respect of any
matters coming within the scope of the release –
without being responsible in any such case for any loss occasioned by any act or
thing so done by him in good faith.
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(2) The trustee shall not be under any obligation and shall not be chargeable with any breach of trust by reason of any omission –
(a) To give any notice in respect of or apply for any charging or other like order upon any securities or other property out of or in which such share or interest or other thing in action as aforesaid is derived, payable, or charged; or
(b) To take any proceedings on account of any act, default, or neglect on the part of the persons in whom the securities or other property or any of them or any part of it are for the time being, or had at any time been, vested –
unless and until required in writing so to do by some person, or the guardian of some person, beneficially interested under the trust, and unless also due provision is made to his satisfaction for payment of the costs of any proceedings required to be taken.
(3) Nothing in subsection (2) shall relieve the trustee of the obligation to
get in and obtain payment or transfer of the share or interest or other thing in
action on the same falling into possession.
28 Valuations
(1) A trustee may, for the purpose of giving effect to the trust, or any of the
provisions of the instrument, if any, creating the trust or of this Act or any other
Act, ascertain and fix the value of any trust property, or of any property which he
is authorised to purchase or otherwise acquire, in such manner as he thinks proper;
and where the trustee is not personally qualified to ascertain the value of any
property he shall consult a duly qualified person (whether employed by him or
not) as to that value; but the trustee shall not be bound to accept any valuation
made by any person whom the trustee may consult.
(2) Any valuation made by the trustee in good faith under this section
shall be binding on all persons beneficially interested under the trust.
29 Power to employ agents
(1) A trustee may, instead of acting personally, employ and pay an agent,
whether a solicitor, accountant, bank, trustee corporation, stockbroker, or other
person, to transact any business or do any act required to be transacted or done in
the execution of the trust or the administration of the trust property, including the
receipt and payment of money, and the keeping and audit of trust accounts, and
shall be entitled to be allowed and paid all charges and expenses so incurred, and
shall not be responsible for the default of any such agent if employed in good
faith.
(2) A trustee may appoint any person to act as his agent or attorney for the purpose of selling, converting, collecting, getting in, and executing and perfecting assurances of, or managing or cultivating, or otherwise administering any property, real or personal, movable or immovable, subject to the trust in any place outside Niue or executing or exercising any discretion or trust or power vested in him in relation to any such property, with such ancillary powers and with and subject to such provisions and restrictions as he may think fit, including a power to appoint substitutes, and shall not, by reason only of his having made any such appointment, be responsible for any loss arising thereby;
(2A) Without restricting the other powers conferred by this section, a trustee may –
(a) Employ a trustee corporation to be his agent for the purpose of investing any trust funds in his possession, whether at the
Trustee Act 1956 1665
commencement of the employment in a state of investment or not, whether they came into his possession before or after the commencement of this section, and whether they comprise the whole or any part of the trust estate to which they belong; and
(b) Pay or transfer any such trust funds to the trustee corporation so employed.
(3) Without prejudice to such general power of appointing agents –
(a) A trustee may appoint a solicitor to be his agent to receive and give
a discharge for any money or valuable consideration or property
receivable by the trustee under the trust by permitting the solicitor
to have the custody of, and to produce a deed or instrument having
in the body of it or endorsed on it a receipt for the money or valuable
consideration or property, the deed or instrument being executed,
or the endorsed receipt being signed, by the person entitled to give
a receipt for that consideration;
(b) A trustee shall not be chargeable with breach of trust by reason
only of his having made or concurred in making any such
appointment; and the production of any such deed or instrument
by the solicitor shall have the same validity and effect as if the person
appointing the solicitor had not been a trustee;
(c) A trustee may appoint a bank or solicitor to be his agent to receive
and give a discharge for any money payable to the trustee under or
by virtue of a policy of insurance, by permitting the bank or solicitor
to have the custody of and to produce the policy of insurance with
a receipt signed by the trustee, and a trustee shall not be chargeable
with a breach of trust by reason only of his having made or
concurred in making any such appointment.
(3) Nothing in subsection (2) shall exempt a trustee from any liability which
he would have incurred if this Act and any enactment replaced by this Act had
not been passed, in case he permits any such money, valuable consideration, or
property to remain in the hands or under the control of the bank or solicitor for a
period longer than is reasonably necessary to enable the bank or solicitor, as the
case may be, to pay or transfer the same to the trustee.
30 Power to concur with others
Where an undivided share in any property is subject to a trust, the trustee
may (without prejudice to any trust or power in relation to the entirety of the
property) execute or exercise any trust or power vested in him in relation to that
share in conjunction with the persons entitled to or having power in that behalf
over the other share or shares, and notwithstanding that the trustee or any one or
more of several trustees may be entitled to or interested in any such other share,
either in his or their own right or in a fiduciary capacity.
31 Power to delegate trusts
(1) A trustee who –
(a) Is for the time being out of Niue or is about to depart from it; or
(b) Expects that he may be absent from Niue during the administration
of the trust; or
(c) Is or may be about to become temporarily incapable, by reason of
physical infirmity, of performing all his duties as trustee; or
(d) Expects that he may be from time to time temporarily incapable,
by reason of physical infirmity, of performing all his duties as a
trustee –
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may, notwithstanding any rule of law or equity to the contrary, by power of attorney executed as a deed, delegate to any person the execution or exercise, during any period for which the trustee may be absent from Niue or incapable of performing all his duties as a trustee, of all or any trusts, powers, authorities, and discretions vested in him as such trustee, whether alone or jointly with any other person or persons:
Provided that a person being the only other co-trustee and not being a trustee corporation shall not be appointed to be an attorney under this subsection.
(2) Where any such delegation has been duly made to and accepted by
any person and is for the time being in operation, that person shall have, within
the scope of the delegation, the same trusts, powers, authorities, discretions,
liabilities, and responsibilities as he would have if he were then the trustee.
(3) In any proceedings brought by any person beneficially interested under
the trust against the donor of a power of attorney given under this section in
respect of any act or default of the donee of the power it shall be a defence for the
donor to prove that the donee was appointed by him in good faith and without
negligence.
(4) All jurisdiction and powers of any Court shall apply to the donee of
the power of attorney in the same manner, so far as respects the execution of the
trust or the administration of the estate to which the power of attorney relates, as
if the donee were acting in relation to the trust or estate in the same capacity as the
donor of the power.
(5) The power of attorney shall not come into operation unless and until
the donor is out of Niue or is incapable of performing all his duties as a trustee,
and unless the deed otherwise provides shall be deemed to be revoked by his
return or by his recovery of that capacity, as the case may be.
(6) In favour of any person dealing with the donee of a power of attorney
given under this section, any act done or instrument executed by the donee shall,
notwithstanding that the power has never come into operation or has been revoked,
whether by the Act of the donor of the power or by operation of law, be as valid
and effectual as if the power had come into operation and remained unrevoked at
the time when the act was done or the instrument executed, unless that person
had at that time actual notice that the power had never come into operation or of
the revocation of the power.
(7) A statutory declaration by the donee of a power of attorney relating to
any trust or estate that the power has come into operation, or that in any transaction
the donee is acting in the execution of the trust or the administration of the estate,
shall in favour of a person dealing with the donee of the power be conclusive
evidence of that fact.
(8) The fact that it appears from any power of attorney given under this
section, or from any evidence required for the purposes of any power of attorney
or otherwise, that in any transaction the donee of the power is acting in the
execution of a trust shall not be deemed for any purpose to affect any person
dealing in good faith with the donee with any notice of the trust.
(9) For the purpose of executing or exercising the trusts, powers, authorities,
and discretions delegated to him the donee may exercise any of the powers,
authorities and discretions conferred on the donor as trustee by statute or by the
instrument creating the trust, except the power of delegation conferred by this
section.
Trustee Act 1956 1667
32 Power to carry on business
(1) Subject to any other Act, if at the time of his death any person (whether
alone or in partnership) is engaged in carrying on a business, trade, or occupation,
it shall be lawful for his trustee to continue to carry on the same in the same manner
for any one or more of the following periods –
(a) 2 years from the death of that person;
(b) Such period as may be necessary or desirable for the winding up of
the business;
(c) Such further period or periods as the Court may approve.
(2) In exercise of the powers conferred by this section or by the instrument
creating the trust, a trustee may employ any part of the deceased’s estate which is
subject to the same trusts; and may increase or diminish the part of the estate so
employed; and may purchase stock, machinery, implements, and chattels for the
purposes of the business; and may employ such managers, agents, servants, clerks,
workmen, and others as he thinks fit; and may at any time enter into a partnership
agreement to take the place of any partnership agreement subsisting immediately
before the death of the deceased or at any time after it.
(3) Application to the Court for leave to carry on a business may be made
by the trustee or any person beneficially interested in the estate at any time, whether
or not any previous authority to carry on the business has expired; and the Court
may make such an order, or may order that the business be not carried on, or be
carried on subject to conditions, or may make such other order as in the
circumstances seems proper.
(4) Nothing in this section shall prejudice any other authority to do the
acts thereby authorised to be done.
(5) Where a trustee is in any manner interested or concerned in a trade or
business, he may make such subscription as it would be prudent for him to make
if he were acting for himself out of the income of the assets affected to any fund
created for objects or purposes in support of trades or businesses of a like nature
and subscribed to by other persons engaged in the like trade or business.
33 Power to convert business into a company
A trustee may at any time, at the expense of the trust property, convert or
join in converting any business into a company limited by shares in such manner
as he may think fit; and may, at the like expense, promote and assist in promoting
a company for taking over the business; and may sell or transfer the business and
the capital and assets and goodwill of it, or any part of it, to the company, or to
any company having for its objects the purchase of such a business, in consideration
in either case, wholly or in part of ordinary or preference shares wholly or partially
paid up of any such company, or wholly or in part of debentures, debenture stock,
or bonds of any such company, and as to the balance (if any) in cash payable
immediately, or by any instalments with or without security.
33A Trustee may sue himself in a different capacity
(1) Notwithstanding any rule of law or practice to the contrary, a trustee
of any property in that capacity may sue, and be sued by, himself in any other
capacity whatsoever, including his personal capacity.
(2) In every such case the trustee shall obtain the directions of the Court in
which the proceedings are taken as to the manner in which the opposing interests
are to be represented.
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Indemnities
34 Protection against liability in respect of rents and covenants
(1) Where a trustee liable as such for –
(a) Any rent, covenant, or agreement reserved by or contained in any
lease; or
(b) Any rent, covenant or agreement payable under or contained in
any grant made in consideration of a rentcharge; or
(c) Any indemnity given in respect of any rent, covenant or agreement
referred to in paragraph (a) or (b) –
satisfies all liabilities under the lease or grant which may have accrued and been
claimed up to the date of the conveyance hereinafter mentioned, and, where
necessary, sets apart a sufficient fund to answer any future claim that may be
made in respect of any fixed and ascertained sum which the lessee or grantee
agreed to lay out on the property demised or granted, although the period for
laying out the same may not have arrived, then and in any such case the trustee
may convey the property demised or granted to a purchaser, legatee, devisee, or
other person entitled to call for a conveyance of it, and after it –
(i) He may distribute the trust estate (other than the fund, if any,
set apart as aforesaid) to or amongst the persons entitled to it,
without appropriating any part, or any further part, as the case
may be, of the trust estate to meet any future liability under
the said lease or grant;
(ii) Notwithstanding the distribution, he shall not personally be
liable in respect of any subsequent claim under the said lease
or grant.
(2) For the purposes of this section a trustee shall be deemed to be liable as
such for any liabilities arising from privity of estate which he may incur under the
obligations contained in a lease or grant if he is entitled to reimburse himself out
of the trust property for all expenses he may incur in respect of the liabilities.
(3) This section operates without prejudice to the right of the lessor or
grantor, or the persons deriving title under the lessor or grantor, to follow the
trust property or any part of it or any property representing the same into the
hands of the persons amongst whom the same may have been respectively
distributed, and applies notwithstanding anything to the contrary in the
instrument, if any, creating the trust.
(4) In this section “lease” includes a sublease and an agreement for a lease
or sublease and any instrument giving any such indemnity as aforesaid or varying
the liabilities under the lease; “grant” applies to a grant whether the rent is created
by limitation, grant, reservation, or otherwise, and includes an agreement for a
grant and any instrument giving any such indemnity as aforesaid or varying the
liabilities under the grant; and “lessee” and “grantee” include persons respectively
deriving title under them.
34A Lien on policy money for premiums
Where a trustee pays any premiums in respect of any policy of insurance
he shall have a lien on the policy money for the amount of the premiums so paid,
together with interest on it at the rate of 6 percent.
35 Protection against creditors
(1) (a) Where a trustee has given notice by advertisement published at
least once in a newspaper circulating in each locality in which in
the pinion of the trustee claims are likely to arise requiring persons
Trustee Act 1956 1669
having claims to which this section applies to send to the trustee, within the time fixed in the notice, particulars of their claims and warning them of the consequences of their failure to do so, then, at the expiration of that time or at any time after it the trustee may administer or distribute the property or any part of it to which the notice relates to or among the persons entitled to it having regard only to the claims, whether formal or not, of which the trustee then has notice; and he shall not, as respects the property so administered or distributed, be liable to any person of whose claim he has not had notice at the time of the administration or distribution.
(b) Nothing in this section shall prejudice any remedy which the person may have under section 49 of the Administration Act 1969 or any other right or remedy available to him against any person other than the trustee, including any right which he may have to follow the property and any money or property into which it is converted.
(2) (a) The time to be fixed as aforesaid by any such notice shall not be less than one month from the date on which the notice is given.
(b) Where the notice is given in a newspaper circulating mainly outside
Niue the time to be fixed as aforesaid shall be not less than 2 months.
(3) In any case where the personal representative of a deceased person
gives any such notice, the localities specified in subsection (1) shall include each
locality in which the deceased resided or carried on business at any time during
the year immediately preceding his death.
(4) Where the trustee is in doubt as to what advertisements should be
published under this section he may apply to the Court for directions.
(5) Any advertisement published under this section may relate to more
than one estate or trust property.
(6) This section shall apply notwithstanding anything to the contrary in
the instrument, if any, creating the trust.
(7) Except as provided in subsection (8) this section shall apply to the claims,
whether present or future, certain or contingent, against a trustee personally by
reason of his being under any liability in respect of which he is entitled to reimburse
himself out of the estate or property that he is administering.
(8) This section shall not apply to –
(a) Any claim arising out of any contract to make a will containing
certain provisions or not to revoke an existing will or a specified
provision therein or not to make a will; or
(b) Any claim by a person to be a beneficiary under the will or to be
entitled on the intestacy of the deceased person or to be beneficially
interested under the trust.
36 Protection in regard to notice
A trustee acting for the purposes of more than one trust shall not, in the
absence of fraud, be affected by notice of any instrument, matter, fact, or thing in relation to any particular trust if he has obtained notice of it merely by reason of his acting or having acted for the purposes of another trust.
1670 Niue Laws 2006 Vol 3
37 Exoneration of trustees in respect of certain powers of attorney
(1) A trustee acting or paying money in good faith in reliance on any power
of attorney and on a statutory declaration or other sufficient evidence that the
power of attorney has not been revoked shall not be liable for any such act or
payment by reason of the fact that at the time of the act or payment the person
who gave the power of attorney was subject to any disability, or bankrupt, or
dead, or had done or suffered some act or thing to avoid the power, if this fact was
not known to the trustee at the time of his so acting or paying.
(2) (a) Nothing in this section shall affect the right of any person entitled
to the money against the person to whom the payment is made.
(b) The person so entitled shall have the same remedy against the
person to whom the payment is made as he would have had against
the trustee.
38 Implied indemnity of trustees
(1) A trustee shall be chargeable only for money and securities actually
received by him, notwithstanding his signing any receipt for the sake of conformity,
and shall be answerable and accountable only for his own acts, receipts, neglects,
or defaults, and not for those of any other trustee, nor for any bank, broker or
other person with whom any trust money or securities may be deposited, nor for
the insufficiency or deficiency of any securities, nor for any other loss unless the
same happens through his own wilful default.
(2) (a) A trustee may reimburse himself or pay or discharge out of the
trust property all expenses reasonably incurred in or about the
execution of the trusts or powers; but, except as provided in this
Act or any other Act or as agreed by the persons beneficially
interested under the trust, no trustee shall be allowed the costs of
any professional services performed by him in the execution of the
trusts or powers unless the contrary is expressly declared by the
instrument creating the trust.
(b) The Court may on the application of the trustee allow such costs as
in the circumstances seem just.
39 Protection of trustee who pays trust money to bankrupt
(1) (a) If a trustee in good faith, without negligence, and without actual
knowledge of the bankruptcy of any person, pays or transfers to or
to the order of that person any trust money or trust property which
he would have been entitled to receive (whether as a beneficiary or
otherwise) if he had not been adjudged bankrupt, the trustee shall
not be liable to the assignee in bankruptcy of the estate of the
bankrupt for any money so paid or any property so transferred.
(b) Nothing in this section shall prejudice the right of the assignee in
bankruptcy to follow the money or property or any part of it into
the hands of the persons who have received the same.
(2) For the purposes of this section a trustee shall not be deemed to have
actual knowledge of the bankruptcy of any person by reason merely of the fact
that notice of the adjudication has been published in any newspaper or in the
Gazette.
Trustee Act 1956 1671
39A Protection of trustee in handing over chattels to life tenant
(1) Where any chattels are, under the provisions of any will, bequeathed
to any person including an infant for life or for any limited interest, the trustee
may cause an inventory to be made of the chattels, which inventory shall be signed
by that person and retained by the trustee, and a copy of the inventory shall be
delivered to that person.
(2) The trustee may thereupon deliver the chattels to that person on such
terms and conditions as the trustee thinks fit, and shall not after it be bound to see
to the repair or insurance of the chattels, and shall not be subject to any liability
whatsoever by reason of the loss or destruction of the chattels or the neglect of
that person to effect any such repairs or insurance.
(3) A copy of any such inventory, signed by that person and by the trustee
shall be deemed to be an instrument within the meaning of the Chattels Transfer
Act 1924, and may be registered accordingly.
39B Protection of trustee in handing over chattels to infant
(1) a trustee may in his discretion deliver to an infant, or to the guardian
or any of the guardians of an infant, any chattels absolutely vested in the infant,
and the receipt of the infant or guardian shall be a complete discharge to the trustee
for any chattels so delivered.
(2) The powers conferred by this section are in addition to the powers
conferred by section 41 and, for the purposes of section 41(2)(b) the value of the
chattels delivered under this section shall not be taken into account in any way.
Maintenance, Advancement and Protective Trusts
40 Power to apply income for maintenance
(1) Where any property is held by a trustee in trust for any person for any
interest whatsoever, whether vested or contingent, then, any prior interests or charges affecting that property –
(a) During the infancy of any such person, if his interest so long continues, the trustee may, at his sole discretion, pay to his parent or guardian, if any, or otherwise apply for or towards his maintenance or education (including past maintenance or education) or his advancement or benefit, the whole or such part, if any, of the income of that property as may, in all the circumstances be reasonable, whether or not there is –
(i) Any other fund applicable to the same purpose; or
(ii) Any person bound by law to provide for his maintenance,
education, advancement, or benefit; and
(b) If the person on attaining the age of 20 years has not a vested interest
in that income, the trustee shall thenceforth pay the income of that
property and of any accretion to it under subsection (2) to him until
he either attains a vested interest in it or dies, or until failure of his
interest;
Provided that, in deciding whether the whole or any part of the income of the
property is during a minority to be paid or applied for the purposes aforesaid, the
trustee shall have regard to the age of the infant and his requirements and generally
to the circumstances of the case, and in particular to what other income, if any, is
applicable for the same purposes; and where the trustee has notice that the income
of more than one fund is applicable for those purposes, then, so far as practicable,
unless the entire income of the funds is paid or applied as aforesaid or the Court
otherwise directs, a proportionate part only of the income of each fund shall be so
paid or applied.
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(2) During the infancy of any such person, if his interest so long continues, the trustee shall accumulate all the residue of that income in the way of compound interest by investing the same and the resulting income of it in authorised investments, and shall hold those accumulations as follows –
(a) If any such person –
(i) Attains the age of 20 years, or marries under that age, and his
interest in the income during his infancy or until his marriage
is a vested interest; or
(ii) On attaining the age of 20 years or on marriage under that age
becomes entitled to the property from which the income arose
in fee simple absolute or determinable, or absolutely –
the trustee shall hold the accumulations in trust for that person
absolutely, but without prejudice to any provision with respect to
it contained in any settlement by him made under any statutory
powers during his infancy, and so that the receipt of that person
after marriage, and though still an infant, shall be a good discharge;
and
(b) In any other case the trustee shall, notwithstanding that that person
had a vested interest in the income, hold the accumulations as an
accretion to the capital of the property from which the accumulations
arose and as one fund with that capital for all purposes –
but the trustee may, at any time during the infancy of that person if his interest so
long continues, apply those accumulations, or any part of it, as if they were income
arising in the then current year.
(3) This section applies in the case of a contingent interest only if the
limitation or trust carries the intermediate income of the property, but it applies to
a future or contingent legacy by the parent of, or a person standing in the place of
a parent to, the legatee, if and for such period as, under the general law, the legacy
carries interest for the maintenance of the legatee, and in any such case as last
aforesaid the rate of interest shall (if the income available is sufficient and subject
to any rules of Court to the contrary) be that for the time being prescribed by or
under section 39 of the Administration Act 1969.
(4) This section applies to a vested annuity in like manner as if the annuity
were the income of property held by a trustee in trust to pay the income of it to the
annuitant for the same period for which the annuity is payable, save that in any
case accumulations made during the infancy of the annuitant shall be held in
trust for the annuitant or his personal representatives absolutely.
41 Power to apply capital for maintenance
(1) A trustee may at any time or times pay or apply any capital money or
other capital asset subject to a trust, for the maintenance or education (including past maintenance or education), or the advancement or benefit, in such manner as he may in his absolute discretion think fit, of any person entitled to the capital of the trust property or of any share of it, whether absolutely or contingently on his attaining any specified age or on the occurrence of any other event, or subject to a gift over on his death under any specified age or on the occurrence of any other event, and whether in possession or in remainder or reversion, and any such payment or application may be made notwithstanding that the interest of that person is liable to be defeated by the exercise of a power of appointment or revocation, or to be diminished by the increase of the class to which he belongs.
(2) (a) The money or asset so paid or applied for the maintenance, education, advancement, or benefit of any person shall not exceed
Trustee Act 1956 1673
altogether half of the presumptive or vested share or interest of that person in the trust property where the value of that share or interest exceeds $2,000 and in any other case shall not exceed altogether $1,000 in amount or value; and
(b) Where that person or any other person is or becomes absolutely and indefeasibly entitled to the share of the trust property in which that person had presumptive or vested interest when the money or asset was so paid or applied, that money or asset shall be brought into account as part of that share in the trust property; and
(c) No such payment or application shall be made so as to prejudice any person entitled to any prior life or other interest, whether vested or contingent, in the money or asset paid or applied unless that person is in existence and of full age and consents in writing to the payment or application, or unless the Court, on the application of the trustee so orders.
41A Conditional advances for maintenance
(1) (a) Where a power to pay or apply any property for the maintenance,
education, advancement, or benefit of any person, or for any one
or more of those purposes, is vested in a trustee, the trustee when
exercising the power shall have, and be deemed always to have
had, authority to impose on the person any condition, whether as
to repayment, payment of interest, giving security, or otherwise.
(b) At any time after imposing any such condition, the trustee may,
either wholly or in part, waive the condition or release any
obligation undertaken or any security given by reason of the
condition.
(2) In determining the amount or value of the property which a trustee
who has imposed such a condition may pay or apply in exercise of the power, any
money repaid to the trustee or recovered by him shall be deemed not to have been
so paid or applied by the trustee.
(3) Nothing in this section shall impose upon a trustee any obligation to
impose any such condition; and a trustee, when imposing any condition as to
giving security as aforesaid, shall not be affected by any restrictions upon the
investment of trust funds, whether imposed by this Act or by any rule of law or
by the trust instrument (if any).
(4) A trustee shall not be liable for any loss which may be incurred in respect
of any money that is paid or applied as aforesaid, whether the loss arises through
failure to take security, or through the security being insufficient, or through failure
to take action for its protection, or through the release or abandonment of the
security without payment, or from any other cause.
42 Protective trusts
(1) Where any income, including an annuity or other periodical income
payment, is directed to be held on protective trusts for the benefit of any person (in this section called the principal beneficiary) for the period of his life or for any less period, then during that period (in this section called the trust period) the said income shall, without prejudice to any prior interest, be held on the following trusts, namely –
(a) Upon trust for the principal beneficiary during the trust period or
until he, whether before or after the termination of any prior interest,
does or attempts to do or suffers any act or thing, or until any event
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happens, other than an advance under any statutory or express power, whereby, if the said income were payable during the trust period to the principal beneficiary absolutely during that period, he would be deprived of the right to receive the same or any part of it, in any of which cases, as well as on the termination of the trust period, whichever first happens, this trust of the said income shall fail or determine;
(b) If the trust aforesaid fails or determines during the subsistence of the trust period, then, during the residue of that period, the said income shall be held upon trust for the application of it for the maintenance or support, or otherwise for the benefit, of all or any one or more exclusively of the other or others of the following persons, that is to say –
(i) The principal beneficiary and his or her wife or husband, if any, and his or her children or more remote issue, if any; or
(ii) If there is no wife or husband or issue of the principal beneficiary in existence, the principal beneficiary and the persons who would, if he were actually dead, be entitled to the trust property or the income of it or to the annuity fund, if any, or arrears of the annuity, as the case may be;
as the trustee in his absolute discretion, without being liable to
account for the exercise of such discretion, thinks fit.
(2) This section shall not apply to trusts coming into operation before the
commencement of this Act, and has effect subject to any variation of the implied
trusts aforesaid contained in the instrument creating the trust.
(3) Nothing in this section shall operate to validate any trust which would,
if contained in the instrument creating the trust, be liable to be set aside.
PART 4
APPOINTMENT AND DISCHARGE OF TRUSTEES
43 Power of appointing new trustees
(1) Where a trustee (whether original or substituted, and whether
appointed by the Court or otherwise) – (a) Is dead; or
(b) Remains out of Niue for the space of 12 months during which no
delegation of any trusts, powers, or discretions vested in him as
such trustee remains in operation under section 31; or
(c) Desires to be discharged from all or any of the trusts or powers
reposed in or conferred on him; or
(d) Refuses to act; or
(e) Is unfit to act; or
(f) Is incapable of so acting; or
(g) Being a corporation, has ceased to carry on business, is in
liquidation, or is dissolved, then –
the person nominated for the purpose of appointing new trustees by the instrument
(if any) creating the trust, or if there is no such person or no such person able and
willing to act, then the surviving or continuing trustees for the time being, or the
personal representatives of the last surviving or continuing trustee, may by deed
appoint a person or persons (whether or not being the person or persons exercising
the power) to be a trustee or trustees in the place of the first-mentioned trustee.
Trustee Act 1956 1675
(2) On the appointment of a trustee or trustees for the whole or any part of trust property –
(a) The number of trustees may be increased; and
(b) A separate set of trustees may be appointed for any part of the trust
property held on trusts distinct from those relating to any other
part, and whether or not new trustees are or are to be appointed for
other parts of the trust property; and any existing trustee may be
appointed or remain one of the separate set of trustees; or if only
one trustee was originally appointed, then one separate trustee may
be so appointed for the first-mentioned part; and
(c) It shall not be obligatory to appoint more than one new trustee
where only one trustee was originally appointed, or to fill up the
original number of trustees where more than 2 trustees were
originally appointed; but, except where only one trustee was
originally appointed, a trustee shall not be discharged under this
section unless there will be either a trustee corporation or at least
two individuals to act as trustees to perform the trust; and
(d) Any assurance or thing requisite for vesting the trust property, or
any part thereof, jointly in the persons who are the trustees shall be
executed or done.
(3) Where a trustee has been removed under a power contained in the
instrument creating the trust, a new trustee or new trustees may be appointed in
the place of the trustee who is removed, as if he were dead, or, in the case of a
corporation, as if the corporation had been dissolved, and this section shall apply
accordingly.
(4) (a) The power of appointment given by subsection (1) or any similar
previous enactment to the personal representatives of a last
surviving or continuing trustee shall be and shall be deemed always
to have been exercisable by the executors for the time being (whether
original or by representation) of that surviving or continuing trustee
who have proved the will of their testator or by the administrators
for the time being of that trustee without the concurrence of any
executor who has renounced or has not proved.
(b) A sole or last surviving executor intending to renounce, or all the
executors where they all intend to renounce, shall have and shall
be deemed always to have had power, at any time before renouncing
probate, to exercise the power of appointment given by this section,
or by any similar previous enactment, if willing to act for that
purpose and without thereby accepting the office of executor.
(5) Where a sole trustee is or has been originally appointed to act in a trust,
or where, in the case of any trust, there are not more than three trustees either
original or substituted and whether appointed by the Court or otherwise, then
and in any such case –
(a) The person or persons nominated for the purpose of appointing
new trustees by the instrument, if any, creating the trust; or
(b) If there is no such person, or no such person able and willing to act,
then the trustee or trustees for the time being –
may, by writing, appoint a person or persons (whether or not being the person or
persons exercising the power) to be an additional trustee or additional trustees,
but it shall not be obligatory to appoint any additional trustee, unless the
instrument, if any, creating the trust, or any statutory enactment provides to the
contrary:
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Provided that an additional trustee or additional trustees shall not be appointed under this subsection without the consent of –
(a) The trustee or trustees for the time being; or
(b) The Court.
(6) Every new trustee appointed under this section as well before as after
all the trust property becomes by law, or by assurance, or otherwise, vested in
him, shall have the same powers, authorities, and discretions, and may in all
respects act as if he had been originally appointed a trustee by the instrument, if
any, creating the trust.
(7) The provisions of this section relative to a trustee who is dead include
the case of a person nominated trustee whether sole or otherwise in a will, and
who dies before the testator; and those relative to a continuing trustee include a
refusing or retiring trustee, if willing to act in the execution of the provisions of
this section.
(8) The provisions of this section relative to a person nominated for the
purpose of appointing new trustees apply whether the appointment is made in a
case specified in this section or in a case specified in the instrument, if any, creating
the trust, but where a new trustee is appointed under this section in a case specified
in that instrument, the appointment shall be subject to the terms applicable to an
appointment in that case under the provisions of that instrument.
(9) In this section “trustee” does not include a personal representative as
such.
44 Evidence as to a vacancy in a trust
(1) A statement contained in any instrument coming into operation after
the commencement of this Act by which a new trustee is appointed for any purpose
connected with land as to how a vacancy in the office of trustee occurred shall, in
favour of a purchaser of the land, be conclusive evidence of the matter stated.
(2) In favour of any such purchaser any appointment of a new trustee
depending on that statement, and any vesting declaration, express or implied,
consequent on the appointment, shall be valid.
45 Retirement of trustee
(1) Where there are 2 or more trustees –
(a) If one of them by deed declares that he is desirous of being
discharged from the trust, and
(b) If his co-trustees and such other person (if any) as is empowered to
appoint trustees by deed consent to the discharge of the trustee,
and to the vesting of the trust property in the co-trustees alone –
then, subject to subsection (3), the trustee desirous of being discharged shall be
deemed to have retired from the trust, and shall by deed be discharged from it
under this Act without any new trustee being appointed in his place.
(2) Any assurance or thing requisite for vesting the trust property in the
continuing trustees alone shall be executed and done.
(3) Except where only one trustee was originally appointed, a trustee shall
not be discharged under subsection (1) unless there will be either a trustee
corporation or at least 2 individuals to act as trustees to perform the trust.
46 Discharge of trustee
(1) Where any trustee is desirous of being discharged from his trust he
shall be entitled to retire from it on passing his accounts before the Registrar, and
giving notice of his retirement to his co-trustees (if any), and to such other person
(if any) as is empowered to appoint new trustees.
Trustee Act 1956 1677
(2) If such co-trustees, or such other person, as aforesaid empowered to appoint new trustees, or any of them, refuse or neglect to appoint a new trustee or to consent to such appointment in place of the trustee so retiring, or if the retiring trustee is the sole trustee having power to appoint a new trustee, but the exercise of that power is impracticable or difficult without the assistance of the Court, it shall be lawful for the retiring trustee to apply to the Court for the appointment of a new trustee in his place.
(3) The Court may, upon any such application, make an order appointing some proper person as trustee in place of the trustee so desirous of being discharged from his trust, and direct any accounts and inquiries to be made, and make an order discharging the trustee from the trust and from all liability in respect of it, and may make such order as to costs or otherwise as it thinks fit, and may exercise any of the powers contained in Part 5 and the person who upon the making of the order becomes trustee shall have the same rights and powers as he would have had if appointed by judgment in an action duly instituted.
47 Vesting of trust property in new or continuing trustees
(1) Where by a deed a new trustee is appointed to perform any trust then –
(a) If the deed contains a declaration by the appointor to the effect that
any estate or interest in any land that is subject to the trust or in any
chattel so subject, or the right to recover or receive any debt or other
thing in action so subject, shall vest in the persons who by virtue of
the deed become or are the trustees for performing the trust, the
deed shall operate, without any conveyance or assignment, to vest
in those persons as joint tenants and for the purposes of the trust
the estate or interest or right to which the declaration relates; and
(b) If the deed is made after the commencement of this Act and does
not contain such a declaration, the deed shall, subject to any express
provision to the contrary in it contained, operate as if it had
contained such a declaration by the appointed extending to all the
estates, interests, and rights with respect to which a declaration
could have been made.
(2) Where by a deed a retiring trustee is discharged under the statutory
power without a new trustee being appointed, then –
(a) If the deed contains such a declaration as aforesaid by the retiring
and continuing trustees, and by the other person (if any) empowered
to appoint trustees, the deed shall, without any conveyance or
assignment, operate to vest in the continuing trustees alone, as joint
tenants, and for the purposes of the trust, the estate or interest or
right to which the declaration relates; and
(b) If the deed is made after the commencement of this Act and does
not contain such a declaration, the deed shall, subject to any express
provision to the contrary in it contained, operate as if it had
contained such a declaration by such persons as aforesaid extending
to all the estates, interests, and rights with respect to which a
declaration could have been made.
(3) An express vesting declaration, whether made before or after the
commencement of this Act shall, notwithstanding that the estate or interest or
right to be vested is not expressly referred to, and provided that the other statutory
requirements were or are complied with, operate and be deemed always to have
operated (but without prejudice to any express provision to the contrary contained
in the deed of appointment or discharge) to vest in the persons respectively referred
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to in subsections (1) and (2), as the case may require, such estates, interests, and rights as are capable of being and ought to be vested in those persons.
(4) This section does not extend –
(a) To land conveyed by way of mortgage for securing money subject
to the trust, except land conveyed on trust for securing debentures
or debenture stock;
(b) To land held under a lease (including a sublease and an agreement
for a lease or sublease) which contains any covenant, condition, or
agreement against assignment or disposing of the land without
licence or consent, unless (before the execution of the deed
containing expressly or impliedly the vesting declaration) the
requisite licence or consent has been obtained, or unless (by virtue
of any statute or rule of law) the vesting declaration, express or
implied, would not operate as a breach of covenant or give rise to a
forfeiture;
(c) To any share, stock, annuity, or property which is transferable only
in books kept by a company or other body, or in the manner directed
by or under any Act.
(5) For purposes of registration of the deed in any registry, the person or
persons making the declaration expressly or impliedly shall be deemed the
conveying party or parties, and the conveyance shall be deemed to be made by
him or them under a power conferred by this Act.
48 Corporations acting as trustees
(1) (a) Any trustee corporation may be appointed and may lawfully act as
the sole trustee in respect of any trust, notwithstanding that the
instrument creating the trust may provide for or direct the
appointment of 2 or more trustees.
(b) Nothing in this subsection shall prevent any other corporation from
acting as a trustee under any authority vested in it in that behalf,
whether by its memorandum of association or otherwise.
(c) No corporation shall administer the estate of any deceased person
unless expressly authorised to do so by any Act.
(2) This section shall not permit the appointment of a corporation as trustee
if the instrument creating the trust forbids the appointment of the corporation.
(3) This section shall extend to all trusts and instruments, and to all
appointments of trustees, whether created or made before or after the
commencement of this Act.
49 Advisory trustees
(1) In the administration of any trust property any trustee may act, to the
extent hereinafter provided, with an advisory trustee, which term includes, in its
application to the estate of a mentally defective person, an advisory committee or
advisory administrator of the estate.
(2) An advisory trustee may be appointed in respect of all or any part of
the trust property –
(a) By the testator, settlor, or other creator of the trust, in the instrument
creating the trust; or
(b) By order of the Court made on the application of any beneficiary or
trustee or of any person on whose application the Court would
have power to appoint a new trustee; or
(c) By the responsible trustee or any person having power to appoint a
new trustee; or
Trustee Act 1956 1679
(d) In respect of the estate of a mentally defective person, by order of the Court made on the application of the committee or person authorised to administer the estate.
(3) Where a trustee acts with an advisory trustee the trust property shall be vested in the first-mentioned trustee (in this section referred to as the responsible trustee), who shall have the sole management and administration of the estate and its trusts as fully and effectually as if he were the sole trustee:
Provided that –
(a) The responsible trustee may consult the advisory trustee on any
matter relating to the trusts or the estate;
(b) The advisory trustee may advise the responsible trustee on any
matter relating to the trusts or the estate, but shall not be a trustee
in respect of the trust;
(c) Where any advice or direction is tendered or given by the advisory
trustee, the responsible trustee may follow the same and act on it
and shall not be liable for anything done or omitted by him by reason
of his following that advice or direction;
(d) In any case where the responsible trustee is of opinion that such
advice or direction conflicts with the trusts or any rule of law, or
exposes him to any liability, or is otherwise objectionable, he may
apply to the Court for directions in the matter, and the decision
and order in it shall be final and shall bind the responsible trustee
and the advisory trustee, and the court may make such order as to
costs as appears proper:
Provided that nothing in this paragraph shall make it necessary for
the responsible trustee to apply to the Court for any such directions.
(e) Where advisory trustees are not unanimous, and tender to the
responsible trustee conflicting advice or directions, the responsible
trustee may similarly apply to the Court for directions;
(4) No person dealing with the responsible trustee in relation to any trust
property shall be concerned to inquire as to the concurrence or otherwise of the
advisory trustee, or be affected by notice of the fact that the advisory trustee has
not concurred.
(5) Subject to the provisions of the instrument (if any) creating the trust
and to any order made by the Court, in any case where remuneration is payable
to the trustee of any trust property, remuneration or commission may be paid to
both the responsible trustee and the advisory trustee, and subject as aforesaid the
amount of it shall be determined by the responsible trustee if he is entitled to fix
his own remuneration, or by the Court.
50 Custodian trustees
(1) Subject to this section and to the instrument (if any) creating the trust,
any corporation may be appointed to be custodian trustee of any trust in any case where it could be appointed to be trustee, in the same manner as it could be so appointed.
(2) Subject to the provisions of the instrument (if any) creating the trust, where a custodian trustee is appointed of any trust –
(a) The trust property shall be vested in the custodian trustee as if the custodian trustee were sole trustee, and for that purpose vesting orders may, where necessary, be made under this Act;
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(b) The management of the trust property and the exercise of all powers and discretions exercisable by the trustee under the trust shall remain vested in the managing trustees as fully and effectually as if there were no custodian trustee;
(c) The sole function of the custodian trustee shall be to get in and hold the trust property, and invest its funds, and dispose of the assets, as the managing trustees in writing direct, for which purpose the custodian trustee shall execute all such documents and perform all such acts as the managing trustees in writing direct;
(d) For the purposes of paragraph (c) a direction given by the majority of the managing trustees where there are more than one, shall be deemed to be given by all the managing trustees;
(e) The custodian trustee shall not be liable for acting on any such direction:
Provided that if the custodian trustee is of opinion that any such
direction conflicts with the trusts or the law, or exposes the custodian
trustee to any liability, or is otherwise objectionable, the custodian
trustee may apply to the Court for directions under section 66; and
any order giving any such directions shall bind both the custodian
trustee and the managing trustees; and the Court may make such
order as to costs as it thinks proper;
(f) The custodian trustee shall not be liable for any act or default on
the part of any of the managing trustees;
(g) All actions and proceedings touching or concerning the trust
property shall be brought or defended in the name of the custodian
trustee at the written direction of the managing trustees, and the
custodian trustee shall not be liable for the costs of it apart from the
trust property;
(h) No person dealing with the custodian trustee shall be concerned to
inquire as to the concurrence or otherwise of the managing trustees,
or be affected by notice of the fact that the managing trustees have
not concurred;
(i) The power of appointing new trustees, when exercisable by the
trustee, shall be exercisable by the managing trustees alone, but the
custodian trustee shall have the same power as any other trustee of
applying to the Court for the appointment of a new trustee.
(3) On the application of the custodian trustee, or of any of the managing
trustees, or of any beneficiary, and on satisfactory proof that it is the general wish
of the beneficiaries, or that on other grounds it is expedient to terminate the
custodian trusteeship, the Court may make an order for that purpose, and may
also make such vesting orders and give such directions as in the circumstances
seem to the Court to be necessary or expedient.
(4) Subject to the provisions of the instrument (if any) creating the trust
and to any order made by the Court, in any case where remuneration or
commission is payable to the trustee of any trust property, remuneration may be
paid to both the custodian trustee and the managing trustees, and subject as
aforesaid the amount of it shall be determined by the managing trustees if they
are entitled to fix their own remuneration or by the Court.
Trustee Act 1956 1681
PART 5
POWERS OF THE COURT
Appointment of New Trustees
51 Power of Court to appoint new trustees
(1) The Court may, whenever it is expedient to appoint a new trustee or
new trustees, and it is found inexpedient, difficult, or impracticable so to do without
the assistance of the Court, make an order appointing a new trustee or new trustees,
either in substitution for or in addition to any existing trustee or trustees, or
although there is no existing trustee.
(2) In particular and without prejudice to the generality of subsection (1),
the Court may make an order appointing a new trustee in substitution for a trustee
who –
(a) Has been held by the Court to have misconducted himself in the administration of the trust; or
(b) Is convicted, whether summarily or on indictment, of a crime
involving dishonesty; or
(c) Is a mentally defective person; or
(d) Is a bankrupt; or
(e) Is a corporation which has ceased to carry on business, or is in
liquidation, or has been dissolved.
(3) An order under this section and any consequential vesting order or
conveyance, shall not operate further or otherwise as a discharge to any former or
continuing trustee than an appointment of new trustees under any power for that
purpose contained in any instrument would have operated.
(4) Nothing in this section shall give power to appoint an executor or
administrator.
(5) Every trustee appointed by the Court shall, as well before as after the
trust property becomes by law, or by assurance, or otherwise, vested in him, have
the same powers, authorities, and discretions, and may in all respects act as if he
had been originally appointed a trustee by the instrument, if any, creating the
trust.
52 Vesting orders of land
Vesting Orders
(1) Subject to subsections (2) and (3) in any of the following cases, namely – (a) Where the Court appoints or has appointed a trustee of any land or interest in it, or where a trustee of any land or interest in it has been
appointed out of Court under any statutory or express power;
(b) Where a trustee entitled to or possessed of any land or interest in it,
whether by way of mortgage or otherwise, or entitled to a contingent
right in it, either solely or jointly with any other person –
(i) Is under disability; or
(ii) Is out of the jurisdiction of the Court; or
(iii) Cannot be found; or
(iv) Being a corporation, has ceased to carry on business or is in
liquidation or has been dissolved;
(c) Where it is uncertain who was the survivor of 2 or more trustees
jointly entitled to or possessed of any interest in land;
(d) Where it is uncertain whether the last trustee known to have been
entitled to or possessed of any interest in land is alive or dead;
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(e) Where there is no personal representative of a deceased trustee who was entitled to or possessed of any interest in land, or where it is uncertain who is the personal representative of a deceased trustee who was entitled to or possessed of any interest in land;
(f) Where a deceased person was entitled to or possessed of any interest in land and his personal representative is under disability;
(g) Where a trustee jointly or solely entitled to or possessed of any interest in land, or entitled to a contingent right in it, has been required, by or on behalf of a person entitled to require a conveyance of the land or interest or a release of the right, to convey the land or interest or to release the right, and has wilfully refused or neglected to convey the land or interest or release the right for 28 days after the date of the requirement;
(h) Where land or any interest in it is vested in a trustee whether by way of mortgage or otherwise, and it appears to the Court to be expedient –
the Court may make an order (in this Act called a vesting order) vesting the land or interest in it in any such person in any such manner and for any such estate or interest as the Court may direct, or releasing or disposing of the contingent right to such person as the Court may direct.
(2) Where any such order is consequential on the appointment of a trustee,
the land or interest in it shall be vested for such estate as the Court may direct in
the persons who on the appointment are the trustees.
(3) Where any such order relates to a trustee entitled or formerly entitled
jointly with another person, and that trustee is under disability or out of the
jurisdiction of the Court or cannot be found, or (being a corporation) has ceased
to carry on business or is in liquidation or has been dissolved, the land, interest, or
right shall be vested in the other person who remains entitled, either alone or
with any other person that the Court may appoint.
53 Contingent rights of unborn persons
Where any interest in land is subject to a contingent right in an unborn
person or class of unborn persons who, on coming into existence would, in respect
of it, become entitled to or possessed of that interest on any trust, the Court may
make an order releasing the land or interest in it from the contingent right, or may
make an order vesting in any person the estate or interest to or of which the unborn
person or class of unborn persons would, on coming into existence, be entitled or
possessed in the land.
54 Vesting order in place of conveyance by infant mortgagee
Where any person entitled to or possessed of any interest in land, or entitled
to a contingent right in land, by way of security for money, is an infant, the Court
may make an order vesting or releasing or disposing of the interest in the land or
the right in like manner as in the case of a trustee under disability.
55 Vesting order consequential on order for sale or mortgage of land
Where the Court gives a judgment or makes an order directing the sale or
mortgage of any land, every person who is entitled to or possessed of any interest
in the land, or entitled to a contingent right in it, and is a party to the action or
proceeding in which the judgment or order is given or made or is otherwise bound
by the judgment or order, shall be deemed to be so entitled or possessed, as the
case may be, as a trustee for the purposes of this Act, and the Court may if it
thinks expedient make an order vesting the land or any part of it for such estate or
interest as the Court thinks fit in the purchaser or mortgagee or in any other person.
Trustee Act 1956 1683
56 Vesting order consequential on judgment for specific performance
Where a judgment is given for the specific performance of a contract
concerning any interest in land, or for sale or exchange of any interest in land, or
generally where any judgment is given for the conveyance of any interest in land,
either in cases arising out of the doctrine of election or otherwise, the Court may
declare –
(a) That any of the parties to the action are trustees of any interest in the land or any part of it within the meaning of this Act; or
(b) That the interests of unborn persons who might claim under any
party to the action, or under the will or voluntary settlement of any
deceased person who was during his lifetime a party to the contract
or transaction concerning which the judgment is given, are the
interests of persons who, on coming into existence, would be
trustees within the meaning of this Act –
and thereupon the Court may make a vesting order relating to the rights of those
persons, born and unborn, as if they had been trustees.
57 Effect of vesting order
A vesting order under sections 52 to 56 shall, in the case of a vesting order
consequential on the appointment of a trustee, have the same effect –
(a) As if the persons who before the appointment were the trustees, if
any, had duly executed all proper conveyances of the land for such
estate or interests as the Court directs; or
(b) If there is no such person or no such person of full age and full
mental capacity, as if such person had existed and been of full age
and full mental capacity and had duly executed all proper
conveyances of the land for such estate or interest as the Court
directs;
and shall in every other case have the same effect as if the trustee or other person
or description or class of persons to whose rights or supposed rights the said
provisions respectively relate had been an ascertained and existing person of full
age and full mental capacity and had executed a conveyance or release to the
effect intended by the order.
58 Power to appoint person to convey
In all cases where a vesting order can be made under section 52 to 56, the
Court may, if it is more convenient, appoint a person to convey the land or any
interest in it or release the contingent right, and a conveyance, or release by that
person in conformity with the order shall have the same effect as an order under
the appropriate provision.
59 Vesting orders as to stock and things in action
(1) Subject to subsections (2), (3) and (4) in any of the following cases,
namely –
(a) Where the Court appoints or has appointed a trustee, or where a trustee has been appointed out of Court under any statutory or express power;
(b) Where a trustee entitled, whether by way of mortgage or otherwise, alone or jointly with another person to stock or to a thing in action – (i) Is under disability; or
(ii) Is out of the jurisdiction of the Court; or
(iii) Cannot be found; or
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(iv) Being a corporation, has ceased to carry on business or is in liquidation or has been dissolved; or
(v) Neglects or refuses to transfer stock or receive the dividends or income of it, or to sue for or recover a thing in action, under the direction of the person absolutely entitled to it for 28 days next after a request in writing has been made to him by the person so entitled; or
(vi) Neglects or refuses to transfer stock or receive the dividends or income of it or to sue for or recover a thing in action for 28 days next after an order of the Court for that purpose has been served on him;
(c) Where it is uncertain who was the survivor of 2 or more trustees
entitled to stock or to a thing in action;
(d) Where it is uncertain whether a trustee entitled alone or jointly with
another person to stock or to a thing in action is alive or dead;
(e) Where there is no personal representative of a deceased person
entitled to stock or to a thing in action or where it is uncertain who
is the personal representative of a deceased person who is entitled
to stock or to a thing in action;
(f) Where stock is standing in the name of a deceased person whose
personal representative is under disability;
(g) Where stock or a thing in action is vested in a trustee whether by
way of mortgage or otherwise and it appears to the Court to be
expedient –
the Court may make an order vesting the right to transfer or call for a transfer of
stock, or to receive the dividends or income of it, or to sue for or recover the thing
in action in any person as the Court may appoint.
(2) Where any such order is consequential on the appointment of a trustee,
the right shall be vested in the persons who, on the appointment, are the trustees.
(3) Where the person whose right is dealt with by any such order was
entitled jointly with another person, the right shall be vested in that last-mentioned
person either alone or jointly with any other person whom the Court may appoint.
(4) No such order shall be made vesting shares that are not fully paid up
in any person unless he applies for the order or consents to the making of the
order.
(5) In all cases, where a vesting order can be made under this section, the Court may, if it is more convenient, appoint some proper person to make or join in making the transfer; and without restricting the powers of the Court under this subsection it is hereby declared that the person appointed to make or join in making a transfer of stock may be some proper officer of the bank or company or society or association in whose books the stock is to be transferred.
(6) The person in whom the right to transfer or call for the transfer of any stock is vested by an order of the Court under this Act may transfer the stock to himself or any other person under the order, and all banks, societies, associations, companies, and persons shall obey every order under this section under its tenor. (7) After notice in writing of an order made under this section it shall not
be lawful for any bank, society, association, company, or person to transfer any
stock to which the order relates or to pay any dividends on it except under the
order.
(8) The Court may make declarations and give directions concerning the manner in which the right to transfer any stock or thing in action vested under this Act is to be exercised.
Trustee Act 1956 1685
60 Vesting orders in respect of shares in ships and industrial property
The provisions of this Act as to vesting orders shall apply to shares in ships
registered in Niue and to any intellectual property rights, as if they were stock.
61 Vesting orders of charity property
The powers conferred by this Act as to vesting orders may be exercised for
vesting any interest in any land, stock, or thing in action in any trustee of a charity
or society over which the Court would have jurisdiction upon action duly
instituted, whether the appointment of the trustee was made by instrument under
a power or by the Court under its general or statutory jurisdiction.
62 Orders made upon certain allegations to be conclusive evidence
Where a vesting order is made as to any land under this Act or under any
other Act founded on an allegation of any of the following matters, namely –
(a) The personal incapacity of a trustee or mortgagee; or
(b) That a trustee or mortgagee or the personal representative of or
other person deriving title under a trustee or mortgagee is out of
the jurisdiction of the Court or cannot be found, or (being a
corporation) has ceased to carry on business or is in liquidation or
has been dissolved; or
(c) That it is uncertain which of 2 or more trustees, or which of 2 or
more persons interested in a mortgage, was the survivor; or
(d) That it is uncertain whether the last trustee or the personal
representative of or other person deriving title under a trustee or
mortgagee, or the last surviving person interested in a mortgage is
living or dead; or
(e) That any trustee or mortgagee has died intestate without leaving a
person beneficially interested under the intestacy or has died and
it is not known who is his personal representative or the person
interested –
the fact that the order has been so made shall be conclusive evidence of the matter
so alleged in any Court upon any question as to the validity of the order; but this
section shall not prevent the Court from directing a reconveyance or surrender or
the payment of costs occasioned by any such order if improperly obtained.
of trust
(1) Subject to any contrary intention expressed in the instrument (if any)
creating the trust, where in the opinion of the Court any sale, lease, mortgage,
surrender, release, or other disposition, or any purchase, investment, acquisition,
retention, expenditure, or other transaction is expedient in the management or
administration of any property vested in a trustee, or would be in the best interests
of the persons beneficially interested under the trust, but it is inexpedient or difficult
or impracticable to effect the same without the assistance of the Court, or the
same cannot be effected by reason of the absence of any power for that purpose
vested in the trustee by the trust instrument (if any) or by law, the Court may by
order confer upon the trustee, either generally or in any particular instance, the
necessary power for the purpose, on such terms, and subject to such provisions
and conditions (if any) as the Court may think fit, and may direct in what manner
1686 Niue Laws 2006 Vol 3
any money authorised to be expended, and the costs of any transaction, are to be paid or borne, and as to the incidence of it between capital and income.
(2) Notwithstanding anything to the contrary in the instrument (if any) creating the trust, the Court, in proceedings in which all trustees and persons who are or may be interested are parties or are represented or consent to the order, may make such an order and may give such directions as it thinks fit to the trustee in respect of the exercise of any power conferred by the order.
(3) (a) The Court may rescind or vary any order made under this section, or may make any new or further order;
(b) No such rescission or variation of any order shall affect any act or thing done in reliance on the order before the person doing the act or thing became aware of the application to the Court to rescind or vary the order.
(4) An application to the Court under this section may be made by the trustees, or by any of them, or by any person beneficially interested under the trust.
64A Powers of Court to authorise variations
(1) Without limiting any other powers of the Court, it is hereby declared
that where any property is held on trusts arising under any will, settlement, or
other disposition, or on the intestacy or partial intestacy of any person, or under
any order of the Court, the Court may by order approve on behalf of –
(a) Any person having, directly or indirectly, an interest, whether vested
or contingent, under the trusts who by reason of infancy or other
incapacity is incapable of assenting; or
(b) Any person (whether ascertained or not) who may become entitled,
directly or indirectly, to an interest under the trusts as being at a
future date or on the happening of a future event a person of any
specified description or a member of any specified class of persons,
so however that this paragraph shall not include any person who
would be of that description, or a member of that class, as the case
may be, if the said date had fallen or the said event had happened
at the date of the application to the Court; or
(c) Any unborn or unknown person; or
(d) Any person in respect of any discretionary interest of his under
protective trusts where the interest of the principal beneficiary has
not failed or determined –
any arrangement (by whomsoever proposed, and whether or not there is any other
person beneficially interested who is capable of assenting to it) varying or revoking
all or any of the trusts, or enlarging the powers of the trustees of managing or
administering any of the property subject to the trusts:
Provided that, except by virtue of paragraph (d), the Court shall not approve an
arrangement on behalf of any person if the arrangement is to his detriment; and
in determining whether any such arrangement is to the detriment of any person
the Court may have regard to all benefits which may accrue to him directly or
indirectly in consequence of the arrangement, including the welfare and honour
of the family to which he belongs:
Provided also that this subsection shall not apply to any trust affecting property
settled by any Act other than the Administration Act 1969.
(2) Any rearrangement approved by the Court under subsection (1) shall
be binding on all persons on whose behalf it is so approved, and thereafter the
trusts as so rearranged shall take effect accordingly.
Trustee Act 1956 1687
(3) In this section –
“discretionary interest” means an interest arising under the trust specified
in section 42 (1)(b) or any like trust;
“principal beneficiary” has the same meaning as in section 42(1);
“protective trusts” means the trusts specified in section 42 (1) (a) or (b) or
any like trusts.
65 [Repealed]
66 Right of trustee to apply to Court for directions
(1) Any trustee may apply to the Court for directions concerning any
property subject to a trust, or respecting the management or administration of
any such property, or respecting the exercise of any power or discretion vested in
the trustee.
(2) Every such application shall be served upon, and the hearing may be
attended by, all persons interested in the application or such of them as the Court
thinks expedient.
67 Persons entitled to apply to Court
(1) An order under this Act for the appointment of a new trustee or
concerning any property subject to a trust may be made on the application of any
person beneficially interested in the property, whether under disability or not, or
on the application of any person duly appointed trustee of it or intended to be so
appointed.
(2) An order under this Act concerning any interest in any property subject
to a mortgage may be made on the application of any person beneficially interested
in the property, whether under disability or not, or of any person interested in the
money secured by the mortgage.
68 Applications to Court to review acts and decisions of trustee
(1) Any person who is beneficially interested in any trust property, and
who is aggrieved by any act or omission or decision of a trustee in the exercise of
any power conferred by this Act, or who has reasonable grounds to anticipate any
such act or omission or decision of a trustee by which he will be aggrieved, may
apply to the Court to review the act or omission or decision or to give directions in
respect of the anticipated act or omission or decision; and the Court may require
the trustee to appear before it, and to substantiate and uphold the grounds of the
act or omission or decision that is being reviewed, and may make such order in
the premises as the circumstances of the case may require:
Provided that no such order shall –
(a) Disturb any distribution of the trust property made without breach
of trust before the trustee became aware of the making of the
application to the Court;
(b) Affect any right acquired by any person in goods faith and for
valuable consideration.
(2) Where any such application is made, the Court may –
(a) If any question of fact is involved, direct how the question shall be
determined;
(b) If the Court is being asked to make an order that may prejudicially
affect the rights of any person who is not a party to the proceedings,
direct that any such person shall be made a party to the proceedings.
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69 Protection of trustee while acting under direction of Court
(1) Any trustee acting under any direction of the Court shall be deemed,
so far as regards his own responsibility, to have discharged his duty as such trustee
in the subject-matter of the direction, notwithstanding that the order giving the
direction is subsequently invalidated, overruled, set aside, or otherwise rendered
of no effect.
(2) This section shall not extend to indemnify any trustee in respect of any
act done under any such direction if he has bee guilty of any fraud or wilful
concealment or misrepresentation in obtaining the direction or inacquiescing in
the Court making the order giving the direction.
70 Powers of Court to give judgment in absence of a trustee
Where in any proceedings the Court is satisfied that diligent search has
been made for any person who, in the character of trustee, is made a defendant in
any action, to serve him with a process of the Court, and that he cannot be found,
the Court may hear and determine the proceedings and give judgment against
that person in his character of a trustee as if he had been duly served, or had
entered an appearance in the action, and had also appeared by his counsel and
solicitor at the hearing, but without prejudice to any interest he may have in the
matters in question in the proceedings in any other character.
71 Power of Court to charge costs
The Court may order the costs and expenses of and incidental to any
application for any order under this Act, or of and incidental to any such order, or
any conveyance or assignment in pursuance of it, to be raised and paid out of the
property in respect whereof the same is made, or out of the income thereof, or to
be borne and paid in such manner and by such persons as to the Court may seem
just.
72 Commission
(1) The Court may, out of the property subject to any trust, allow to any
person who is or has been a trustee thereof or to that person’s personal
representative such commission or percentage for that person’s services as is just
and reasonable.
(1A) In considering under subsection (1) what commission or percentage
is just and reasonable the Court shall have regard to the following circumstances,
namely –
(a) The total amount that has already been paid to any trustee of the trust, whether under the trust instrument or to any earlier order of the Court or to any agreement or otherwise;
(b) The amount and difficulty of the services rendered by the trustee;
(c) The liabilities to which the trustee is or has been exposed, and the
responsibilities imposed o him;
(d) The skill and success of the trustee in administering the trust;
(e) The value of the trust property;
(f) The time and services reasonably required of the trustee;
(g) Whether any commission or percentage that might otherwise have
been allowed should be refused or reduced by reason of delays in
the administration of the trust that were occasioned, or that could
reasonably have been prevented, by the trustee; and
(h) All other circumstances that the Court considers relevant.
Trustee Act 1956 1689
(2) The Court may make any such allowance at any time, before or during the administration of the trust, or on the termination of the trust, and may, subject to such terms and conditions as the Court thinks fit, make any such allowance in respect of services to be rendered by the trustee during any specified period subsequent to the date of the order.
(3) Where the Court allows a commission or percentage under this section
in any case in which 2 or more persons are or have been the trustees, whether
acting at the same time or at different times, the amount so allowed shall be
apportioned among the trustees as they mutually agree; and if there is no such
agreement the Court may, apportion the total amount allowed among the trustees
in such manner as it thinks fit, and, in particular, may divide the amount in unequal
shares or may make the allowance to one or more of the trustees to the exclusion
of the other or others.
73 Power to relieve trustee from personal liability
If it appears to the Court that a trustee, whether appointed by the Court or
otherwise, is or may be personally liable for any breach of trust, whether the
transaction alleged to be a breach of trust occurred before or after the
commencement of this Act, but has acted honestly and reasonably, and ought
fairly to be excused for the breach of trust and for omitting to obtain the directions
of the Court in the matter in which he committed the breach, then the Court may
relieve him either wholly or partly from personal liability for the same.
74 Power to make beneficiary indemnify for breach of trust
Where a trustee commits a breach of trust at the instigation or request or
with the consent in writing of a beneficiary, the Court may, and notwithstanding
that the beneficiary may be a married woman restrained from anticipation, make
such order as to the Court seems just for impounding all or any part of the interest
of the beneficiary in the trust estate by way of indemnity to the trustee or persons
claiming through him.
75 Barring of claims
(1) Where a trustee desires to reject a claim that has been made, or that he
has reason to believe may be made –
(a) To or against the estate or property that he is administering; or
(b) Against the trustee personally by reason of his being under any
liability in respect of which he is entitled to reimburse himself out
of the estate or property that he is administering –
the trustee may serve upon the claimant or the person who may become a claimant
as aforesaid a notice calling upon him, within a period of 3 months from the date
of service of the notice, to take legal proceedings to enforce the claim and also to
prosecute the proceedings with all due diligence.
(2) At the expiration of that period the trustee may apply to the Court for
an order under subsection (3), and shall serve a copy of the application on the
person concerned.
(3) If on the hearing of that application that person does not satisfy the
Court that he has commenced the proceedings and is prosecuting them with all
due diligence, the Court may make an order –
(a) Extending the period, or barring the claim, or enabling the trust
property to be dealt with without regard to the claim; and
(b) Imposing such conditions and giving such directions, including a
direction as to the payment of the costs of or incidental to the
application, as to the Court seems just.
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(3A) Where a trustee has served any such notices in respect of claims on
2 or more persons and the period specified in each of the said notices has expired,
he may, if he thinks fit, apply for an order in respect of the claims of those persons
in a single application, and the Court may on that application make an order
accordingly.
(4) [Repealed by 2004/270]
(5) [Repealed]
(6) On an application by a trustee under this section, the persons
beneficially entitled to the estate or property need not be made parties to the
proceedings, and no order made by the Court on the application shall prejudice
their right to contest the claim of the trustee to be entitled to indemnify himself
out of the estate or property that he is administering if they have not been parties
to the proceedings in which the order was made.
76 Distribution of shares of missing beneficiaries
(1) Where any property is held by a trustee and the property or any part of
it cannot be distributed because the trustee does not know whether any person who is or may be entitled to it is or at any material date was in existence, or whether all of any of the persons who are members of any class who are or may be entitled to it are or at any material date were in existence, or because the trustee does not know whether any such person is alive or dead or where he is, the trustee may publish such advertisements (whether in Niue or elsewhere) as are appropriate in the circumstances calling upon every such person and every person claiming through any such person to send in his claim within a time to be specified in the advertisements, not being less than 2 months in any case from the date on which the advertisement is published. Where the trustee is in doubt as to what advertisements should be published under this subsection, he may apply to the Court for directions in that regard.
(2) (a) Where the trustee has received (whether as a result of the advertise–
ments or not) any claim to be a person to whom any such
advertisement relates, or any notice that any person may claim to
be such a person but the trustee is not satisfied that the claim is or
would be valid, the trustee may serve upon the claimant or the
person of whom the trustee has notice as aforesaid, a notice calling
upon him, within a period of 3 months from the date of service of
the notice, to take legal proceedings to enforce the claim, if he wishes
to pursue it, and to prosecute the proceedings with all due diligence;
and advising him that, if he fails to do so, his claim may be
disregarded and application may be made to the Court without
further notice for an order authorising the distribution of the
property.
(b) Nothing in this subsection shall make it necessary for the trustee to
serve such a notice on any such person; and the Court may make
an order under this section, whether or not such a notice has been
served on any such person, if it is satisfied that the information
supplied to the trustee by that person or otherwise in the possession
of the trustee indicates either that the person is not one of the persons
specified in the advertisements or that he is not likely to be one of
those persons.
(3) Upon proof by affidavit of the circumstances, and of the inquiries that
have been made, and of the results of the inquiries and advertisements, and of the
claims of which the trustee has received notice, and of the notices that the trustee
Trustee Act 1956 1691
has given to claimants under subsection (2), and of the action (if any) which the claimants have taken to enforce their claims, the Court may order that the trustee may distribute the property or part of it, subject to such conditions as the Court may impose –
(a) As if every person and every member of any class of persons specified in the order (being all or any of the persons specified in the advertisements) is not in existence or never existed or has died before a date or event specified in the order; and
(b) Where as a consequence of the order it is not possible or practicable
to determine whether or not any condition or requirement affecting
a beneficial interest in the property or any part of it has been
complied with or fulfilled, as if that condition or requirement had
or had not been complied with or fulfilled (as the Court may
determine).
(4) In making any order under subsection (3), the Court may –
(a) Disregard (without express reference to it in the order) the claims
of any persons who do not appear to the Court to be, or to be likely
to be, any of the persons specified in the advertisements;
(b) Disregard (without express reference to it in the order) the claim of
any person to whom the trustee has given notice under subsection
(2) and who has failed to take legal proceedings to enforce the claim
or to prosecute any such proceedings with all due diligence;
(c) Exclude from the operation of the order any person to whom the
trustee has not given notice under subsection (2) and who in the
opinion of the Court may be one of the persons specified in the
advertisements, or any person whom the Court considers should
for any reason be excluded from the operation of the order;
(d) Provide that the order shall not be acted on for such period or except
on such conditions as may be specified in the order or that the effect
of the order shall during a period so specified be advertised in such
manner and form as may be specified in the order, or that the order
be served upon such person or persons as are specified in it; and in
the event of the Court exercising the jurisdiction conferred by this
paragraph it may in the order direct that the same shall be of no
effect in respect of any person specified in it in the event of that
person instituting proceedings in Niue to enforce his claim and
serving the proceedings upon the trustee within such period as is
specified in the order.
(5) Any such order may be made notwithstanding that there has not been
strict compliance with any directions as to advertisements previously given by
the Court, or that an error has been made in any advertisement (whether or not
any directions have previously been given by the Court) if the Court considers
that the error would not be likely to have prejudiced or misled the persons to
whom the advertisement relates.
(6) (a) Where the Court makes an order under this section that the trustee
may distribute any property or part of it as if every person and
every member of any class of persons specified in the order (not
being a person expressly excluded from the operation of the order)
is not in existence or never existed or has died before a date or
event specified in the order, and the trustee distributes under the
order, the trustee shall be exonerated from any further liability to
any such person or to any member of any such class.
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(b) Nothing in this subsection shall prejudice any remedy which any person may have against any person other than the trustee, including any right which he may have to follow the property and any money or property into which it is converted.
(7) The Court may make one or more orders under this section in respect of the same property.
(8) Any order made under this section may direct how the costs of the order and of advertising under or for the purposes of the order shall be borne.
(9) It shall not be necessary to serve notice of an application for an order
under this section upon any person, unless the Court otherwise orders.
(10) Nothing in this section shall prejudice the right of the trustee to
distribute under any other law or statutory provision or prejudice the protection
thereby afforded when he makes distribution under any such law or provision.
76A Service of notices under sections 75 and 76
(1) Any notice, application, or order that is to be served under section 75
or section 76 or under any order made under section 76, may be served –
(a) Either by delivering it to the person for whom it is intended or by
sending it by post in a registered letter addressed to that person at
his usual or last known place of abode or business; or
(b) In such other manner as may be directed by an order of the Court.
(2) Where a notice is sent by post as aforesaid it shall be deemed to be
served at the time at which the letter would have been delivered in the ordinary
course of post.
Payment to Crown
77 Payment by trustees to Crown
(1) (a) Trustees, or the majority of trustees, having in their hands or under
their control money or securities belonging to a trust, may, on filing
in the Court nearest to which they or the majority of them reside an
affidavit describing the instrument creating the trust and giving
particulars of the persons beneficially entitled under the trust to
the best of their knowledge and belief, and on serving a copy of the
affidavit on the Financial Secretary, pay the money or transfer the
securities (if they can legally be so transferred) to the Crown in the
matter of the particular trust, which shall be described in the
affidavit by the names of the parties as accurately as may be for the
purpose of distinguishing it.
(b) All money and securities so paid or transferred shall be administered
in the Treasury.
(c) All such money and all money derived from securities which have
been transferred to or vested in the Crown under this section shall
be credited by the Financial Secretary to a deposit account
established under the Public Revenues Act to be dealt with as
hereafter provided in this Act.
(2) The receipt of the Financial Secretary shall be a sufficient discharge to
the trustees for the money or securities paid or transferred to the Crown under this section.
(3) Where money or securities are vested in any persons as trustees, and the majority are desirous of paying or transferring the same to the Crown as aforesaid, but the concurrence of the other or others cannot be obtained, the Court may order the payment or transfer to the Crown to be made by the majority without the concurrence of the other or others.
Trustee Act 1956 1693
(4) Where any such money or securities are deposited with any banker, broker or other depositary, the Court may order payment or delivery of the money or securities to the majority of the trustees for the purpose of payment or transfer to the Crown.
(5) Every transfer, payment, and deliver made under any such order shall be valid and take effect as if the same had been made on the authority or by the act of all the persons entitled to the money and securities so transferred, paid, or delivered.
(6) The Financial Secretary may at any time sell any securities held by the
Crown under this section.
(7) [Repealed by 2004/270]
(8) Where any trustee has obtained or is seeking a discharge in respect of
any money or securities under this section or has obtained such a discharge under
the corresponding provisions of any former section, the Financial Secretary may
at any time require that trustee to give such information in his possession or control
as he may require in relation to the persons beneficially entitled to the money or
securities, including information as to the steps taken to trace those persons; and
if any person refuses or wilfully neglects to give any such information that is in
his possession or control when so required, or wilfully gives any false information
in answer to any such requisition, he commits an offence and shall be liable on
conviction to a fine not exceeding 2 penalty units.
78 Disposal of funds paid to Crown
(1) At the end of each financial year the Financial Secretary shall publish
in the Gazette a statement of all money and securities then held by the Crown under section 77, being –
(a) Money which has not previously been credited to the Niue
Government Account under subsection (4);
(b) Securities which were transferred to the Crown within the
immediately preceding 6 years or which were transferred or
deposited into or in the name of any Registrar under section 67 of
the Trustee Act 1908 within the immediately preceding 6 years.
(2) Every statement so published in the Gazette shall contain sufficient
particulars to show the matters in which the money and securities are held by the
Crown and the amount held in respect of each matter.
(3) (a) All money and securities for the time being held by the Crown under
section 77 (whether or not they are held in the Niue Government
Account shall be so held to attend the order of the Court.
(b) Any such money or securities may be paid or transferred by the
Financial Secretary to the person entitled to it upon his establishing
a claim to it or may be paid or transferred to the person from whom
they were received to be held by him as trustee if that person so
requests.
(c) All costs and expenses reasonably incurred by the Crown or the
Financial Secretary in connection with any such money or securities
may be deducted out of the money or securities or out of any other
money and securities which are for the time being held by the Crown
and are subject to the same trusts.
(4) The Financial Secretary shall transfer to the Niue Government Account
all money held under section 77, being money which was –
(a) Paid to the Crown more than 6 years previously; or
(b) Derived from securities which were transferred to the Crown, or
transferred or deposited in the name of any Registrar, more than 6
years previously.
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(5) Any money previously transferred to the Niue Government Account under subsection (4) which is paid or required to be paid under subsection (3) may be paid out of the Niue Government Account without further appropriation than this subsection.
(6) (a) Under no circumstances shall the liability of the Crown or the Financial Secretary in respect of any securities which are transferred to or vested in the Crown under section 77 exceed the value of those securities and of any other securities and money which are held by the Crown and subject to the same trusts at the time when demand is made for satisfaction of the liability.
(b) If the said securities and money are insufficient to meet any such liability, the claimant shall, in respect of any unpaid balance of the liability, have the same rights and remedies against the person beneficially entitled to the securities in respect of which the liability arose as he would if those securities were transferred to that person.
(7) Neither the Crown nor the Financial Secretary shall have the duties or liabilities of a trustee in respect of any money or securities for the time being held by the Crown under section 77 (whether in the Niue Government Account or not); and no interest shall be payable by the Crown or the Financial Secretary in respect of any money so held.
(8) Where any money or securities paid or transferred to any claimant
under this section are afterwards claimed by any other person, the Crown and the
Financial Secretary shall not be responsible for the payment or transfer of it but
that person shall have recourse against the claimant to whom the money was
paid or the securities were transferred.
79 Orders in respect of funds paid to Crown
(1) (a) Upon application made ex parte by such person or persons as are
competent or necessary in that behalf, the Court may make such
order as it thinks fit in respect of any money or securities for the
time being held by the Crown under section 77 (whether in the
Niue Government Account or not), and for the payment, transfer,
and administration of it.
(b) The Court may direct service of the application on such persons as
it thinks fit.
(2) Every such order shall have the same authority and effect and shall be
subject to rehearing and appeal in the same manner as if it had been made in any
action regularly instituted in the Court; and if it appears that any such money or
securities cannot be safely distributed without the institution of one or more actions,
the Court may direct any such action to be instituted.
PART 6
GENERAL PROVISIONS
80 Indemnity to banks and others
This Act, and every order purporting to be made under this Act, shall be a
complete indemnity to all banks, companies, societies, associations, and persons
for any acts done pursuant to it, and it shall not be necessary for any bank, company,
society, association, or person to inquire concerning the propriety of the order, or
whether the Court had jurisdiction to make it.
Trustee Act 1956 1695
81 Operation on bank account of trustees
(1) Where there are more trustees than one, and the trustees, by writing
under their hands communicated to a bank at which their account is kept, arrange
that the account may be operated upon by cheques or drafts signed by one or
more of them, or by one of them and a delegate or delegates named in the writing
of another or others of them, the bank shall be entitled to honour and pay the
cheques or drafts as if they had been signed by all the trustees, until the bank
receives notice in writing of the revocation, by death or otherwise, of the
arrangement.
(2) Nothing in this section or in any rule of law shall prevent trustees from
opening a bank account named as an imprest account and from authorising any
one or more of their number or any other person or persons to operate upon the
imprest account.
82 [Repealed]
83 Special rules as to apportionment
(1) For the purposes of this section –
(a) The term “fixed-income asset” means an asset coming within any
of the following classes –
(i) The securities mentioned in section 4 (1) (a), (c), (d), (e), (f), (g)
and (i);
(ii) Debentures, bonds, and stock (other than shares) in which the
trustee is authorised to invest trust money;
(iii) Any other asset bearing interest or carrying the right to a
dividend if the interest or dividend is payable at a fixed rate
and if the interest or dividend has been paid regularly in respect
of the asset for at least 5 years before the material date and if
the trustee has no reason to believe that the interest or dividend
in respect of the period to which the apportionment relates will
not be paid reasonably promptly after the same falls due;
(b) The term “shares” means share or stock of any company, whether
incorporated in or outside Niue except any such shares or stock
which constitutes a fixed-income asset under paragraph (a) (iii);
(c) An appropriation of shares (whether under the power conferred
by section 15 (1) (j) or otherwise) shall be deemed to be a transfer of
those shares to which subsection (4) applies.
(2) Where any payment received by a trustee in respect of a sale of any
fixed-income asset is or includes payment for the right to receive income accrued
from that asset at the time of sale, though the income may not then be due, the
amount of the accrued income shall, for the purposes of the trust, be deemed to
have been received as income in respect of the period during which it so accrued.
(3) Where any payment made by a trustee in respect of a purchase of any
fixed-income asset is or includes payment for the right to receive any income
accrued from that asset at the time of the purchase, though the income may not
then be due, the amount of the accrued income when received shall, for the
purposes of the trust, be deemed to have been received as purchase money repaid.
(4) Where a trustee transfers any shares (not being a fixed-income asset) to
the person entitled to it under the trust, then, unless the trustee in his absolute
discretion having regard to all the circumstances of the case thinks that it is
equitable, practicable, and convenient to make an apportionment, there shall be
no apportionment of any dividends which have accrued at the date of transfer
1696 Niue Laws 2006 Vol 3
but have not then been declared, and no person who would have been beneficially interested in any such dividends if they had been declared and paid to the trustee shall have any claim in respect of it against the trustee or against the transferee of the shares.
(5) Where a trustee sells any shares that are not a fixed-income asset, no part of the proceeds of the sale shall, for the purposes of the trust, be deemed to have been paid for the right to receive dividends which have accrued in respect of the shares at the time of the sale, but have not then been declared, and there shall accordingly be no apportionment of the proceeds as between capital and income. (6) Where a trustee purchases any shares that are not a fixed-income asset,
no part of the purchase price shall, for the purposes of the trust, be deemed to be paid for the right to receive any dividends which have accrued in respect of the shares at the time of the purchase but have not then been declared, and there shall accordingly be no apportionment of the purchase price as between capital and income, nor shall any part of the dividends received by the trustee be deemed to have been received as purchase money repaid.
(7) Except as herein expressly provided, nothing in this section shall affect the rights and obligations of the trustee or of any other person in respect of apportionment of income on the sale or purchase of any asset or the transfer of it to any person beneficially entitled to it.
(8) Anything done by a trustee before the commencement of this section
which would have been authorised by this section if then in force shall be deemed
to have been authorised by this section.
(9) The provisions of this section shall apply if and so far only as a contrary
intention is not expressed in the instrument, if any, creating the trust, and shall
have effect subject to the terms of that instrument.
83A Examination of accounts of trust estates administered by trustee corporations
In the case of any trust estate administered by a trustee corporation, a solicitor or accountant authorised in writing by a beneficiary shall be entitled as of right to examine at any reasonable time the accounts of that estate, and for the purpose shall have access to the trustee corporation’s books and vouchers (but not the file) relating to that estate, and to the securities and documents of title held by the trustee corporation on account of that estate.
83B Audit of other trust estates
Subject to the provisions of any regulations made under this Act, and unless
the Court otherwise orders, the condition and accounts of any trust estate (being
an estate which is not being administered by a trustee corporation) shall, on an
application being made and notice of it being given in the prescribed manner by
or on behalf of any trustee or beneficiary in that estate, be investigated and audited
by such solicitor or such member of the New Zealand Society of Accountants as
may be agreed on between the applicant trustee and his co-trustees.
84 Costs and testamentary expenses to be payable out of capital of settled
residuary estate of deceased
(1) (a) Where, under the provisions of the will of a person dying after the
commencement of this Act (in this section referred to as the
deceased) any real or personal property included either by specific
or general description in a residuary gift is settled by way of
succession, no part of the income of that property shall be applicable
Trustee Act 1956 1697
in or towards the payment of the funeral, testamentary, and administration expenses, death duties, debts, legacies, and liabilities, or of the interest (if any) on it up to the date of the death of the deceased.
(b) This subsection shall not apply to any commission which is payable to the trustee in respect of any such income or to any testamentary or administration expenses which, apart from this subsection, would be payable wholly out of income.
(2) The income of the settled property shall be applicable in priority to any
other assets in payment of the interest (if any) accruing due on the funeral,
testamentary, and administration expenses, death duties, debts, legacies, and
liabilities after the date of the death of the deceased and up to the payment of it,
and the balance of that income shall be payable to the person for the time being
entitled to the income of the property.
(3) Where, after the death of the deceased, income of assets comprised in
the settled property which are ultimately applied in or towards payment of the
funeral, testamentary, and administration expenses, death duties, debts, legacies
and liabilities, arises pending that application, that income shall, for the purposes
of this section, be deemed income of the residual estate of the deceased.
(4) This section shall only affect the rights of beneficiaries under the will
as between themselves, and shall not affect the rights of creditors of the deceased
or limit any other powers of the trustee.
(5) The provisions of this section shall apply if and so far only as a contrary
intention is not expressed in the will, and shall have effect subject to the terms of
the will and of any Act as to charges on property of the deceased.
(6) Nothing in this section shall apply to any annuity which is payable out
of the estate of the deceased.
85 Application of income of settled property pending conversion
(1) Subject to this section, where under the will of any person any real or
personal property included (either by specific or general description) in a residuary
gift is settled by way of succession, then, notwithstanding that the property may
be of a wasting, speculative, or reversionary nature –
(a) Pending any sale, calling in, or conversion of the settled property,
the whole of the net income of property actually producing income
shall be applied as income and no part of it shall be appropriated to
capital; and
(b) On any such sale, calling in, or conversion, or on the falling in of
any reversionary property, no part of the proceeds of the sale, calling
in, conversion, or falling in, shall be applied as past income.
(2) This section shall apply only in respect of the wills of persons who die
after the date of the commencement of this Act.
(3) This section shall apply if and so far only as a contrary intention is not
expressed in the will of the deceased, and shall have effect subject to the terms of
that will.
86 Fees and commission deemed a testamentary expense
The fees, commission, remuneration and other charges payable to a trustee
in respect of the administration of the estate of a deceased person shall be deemed
to be testamentary expenses.
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87 Costs of inquiring regarding beneficiaries
The costs, expenses and charges of the trustee of any property in respect of
any inquiries made by him to ascertain the existence and identity of any person or
persons entitled to any legacy, money, or distributive share in the property or
otherwise incurred in relation to it shall be borne by and paid out of the legacy,
money, or distributive share of the person or persons in respect of whom the
inquiries were made.
88 Life tenant to have powers of a trustee in certain cases
(1) In any case where there is no trustee of any land, but the land is for the
time being lawfully vested in any person entitled to the possession of it or to the
receipt of the rents and profits from it for an estate for life, or for a term of years
determinable with his life, or for any greater estate, that person may exercise all
the powers conferred on a trustee by this Act, and the Court may confer on that
person all the powers which it could confer on a trustee under this Act; and
anything done by any such person in exercise of any such power shall have the
same force and effect as if it had been done by a trustee.
(2) Nothing in this section shall authorise any such person to sell any such
land, or to raise any capital money by a mortgage of it or other dealing with it,
unless the money paid on the sale or the capital money so raised is paid to a
trustee who is duly appointed and entitled to receive it.
89 [Spent]
90 Regulations
Cabinet may make such regulations as it thinks fit for the purposes of this
Act.
1699
TRUSTEE COMPANIES ACT 1995
[EDITORIAL NOTE: This Act is not reproduced. With the repeal of the off-shore business legislation by the Companies Act 2006 this statute has little relevance and is listed for repeal.]
1700 Niue Laws 2006 Vol 3
1701
TRUSTS ACT 1994
1994/182 – 28 March 1994
THE SETTLOR, BENEFICIARIES AND PURPOSES OF A
TRUST
10 Who may be the settlor of a trust
11 Beneficiaries of a trust
12 Nature of a beneficial interest
13 Protective or spendthrift trusts
14 Letters or memorandum of wishes
15 Definition of charitable purposes
16 Trusts for non-charitable purposes
PART 3
PROTECTORS AND TRUSTEES
17 The protector of a trust
18 Who may be the trustee of a trust
19 The number of trustees
20 Appointment of new or additional trustees
21 Appointment of trustee resident in Niue
22 Renunciation of trusteeship
23 Resignation or removal of trustees
24 Nature of trustees’ and protectors’ interests
25 Corporate trustee may act by resolution
26 Trustees of more than one trust
27 Dealings by trustees with third parties
PART 4
DUTIES AND POWERS OF TRUSTEES
28 General duties of trustees
29 Duty to supply information and duty of
confidentiality
30 Duty of trustees to act together
31 Duty to act impartially
32 General powers of trustees
33 Powers of investment
34 Implied powers of trustees
35 Delegation by trustees
36 Reimbursement of expenses
37 Payment of trustees
38 Power to appropriate
39 Power and duty of maintenance
40 Power of advancement
41 Accumulation and maintenance
settlements
42 Receipts of parents or guardians
43 Power of appointment
44 Power of revocation or variation
PART 5
TERMINATION OR FAILURE OF TRUSTS
45 Failure or lapse of interest
46 Application of property held on charitable
trust
47 Termination of trusts
48 Termination by beneficiaries
PART 6
VARIATION OF TRUSTS
49 Variation of trusts
50 Approval of particular transaction
PART 7
BREACH OF TRUST
51 Liability for breach of trust
52 Constructive trusts
53 Tracing trust property
54 Beneficiary may relieve or indemnify a
trustee
55 Power to relieve trustees from personal
liability
56 Power to make beneficiaries indemnify
57 Limitation and prescription
1702 Niue Laws 2006 Vol 3
PART 8 63 Provisions of variant types of trust
POWERS OF THE COURT
58 Jurisdiction of the Court PART 10
59 General powers of the Court REGISTRATION OF TRUSTS AND EXEMPT TRUSTS
60 Applications for directions 64 Facility to register trusts
61 Payments of costs 65 Exemption from taxes and duties
PART 9 SCHEDULES VARIANT TYPES OF TRUST
62 Variant types of trust
To make provision for the law relating to trusts and trustees and related matters
1 Short title
PART 1
PRELIMINARY
1994.
(1) This Act is the Trusts Act 1994.
(2) This Act shall apply only to trusts created on or after the 28 March
2 Interpretation
(1) In this Act –
“bankrupt”, in relation to a corporation, includes a corporation which is
insolvent;
“beneficiary” means a person entitled to benefit under a trust, or in whose
favour a power to distribute trust property may be exercised;
“breach of trust” means a breach of any duty imposed on a trustee by this
Act or by the terms of the trust;
“corporate trustee” means a trustee which is a corporation;
“corporation” means a body corporate wherever incorporated;
“family” in relation to an individual means his father and mother, his
spouse, the father and mother of his spouse, his brothers and sisters
and the brothers and sisters of his spouse, his children and remoter
issue and the spouses of such children and issue;
“functions” includes rights, powers, discretions, obligations, liabilities and
duties;
“he”, “him”, and “his”, “her”, “she”, in relation to a corporation include
“it” and “its”;
“insolvency” includes the making of an administration order, the
appointment of a receiver and the bankruptcy of any person;
“insurance” incudes assurance;
:interest”, in relation to a beneficiary, means interest of the beneficiary under
a trust;
“Minister” means the Minister of Justice;
“minor” means a person who has not attained full age under the law of his
domicile;
“ordinarily resident” has the same meaning as in article 17 of the
Constitution;
“personal representative” means the executor or administrator of the estate
of a deceased person;
Trusts Act 1994 1703
“profit” includes gain or advantage; “property” –
(a) means property of any description, wherever situated, including any share in it,
(b) In relation to rights and interests, includes rights and interests whether vested, contingent, defeasible or future;
“provisions of this Act” includes the provisions of any order under this
Act;
“settlor” means a person who provides the trust property or makes a
testamentary disposition on trust or to a trust;
“terms of a trust” means the written or oral terms of a trust, and any other
applicable under its proper law;
“trust” includes –
(a) the trust property; and
(b) the functions, interests and relationships under a trust;
“trustee” has the meaning given by section 3, and includes a corporate
trustee;
“trust property” means property held on trust;
“unit trust” means a trust established for the purpose, or having the effect,
of providing, for persons having funds available for investment,
facilities for the participation by them as beneficiaries under the trust
in any profits or income arising from the acquisition, holding,
management or disposal of property.
(2) For the purposes of this Act, a corporation is resident in the place in
which it has its registered office.
3 Definition of trust
A trust exists where a person (known as “a trustee”) holds or has vested in
him, or is deemed to hold or have vested in him, property which does not form, or
which has ceased to form, part of his own estate
(a) For the benefit of a beneficiary, whether or not yet ascertained or in
existence; or
(b) For any valid charitable or non-charitable purpose which is not for
the benefit only of the trustee; or
(c) For such benefit as is mentioned in paragraph (a) and also for any
such purpose as is mentioned in paragraph (b).
4 Validity of trusts
Subject to this Act, a trust is valid and enforceable in Niue.
5 Proper law of trusts
(1) Subject to subsection (4) below, the proper law of a trust shall be –
(a) The law expressed by the terms of the trust or intended by the settlor
to be the proper law;
(b) If no such law is expressed or intended, the law with which the
trust has its closest connection at the time of its creation; or
(c) If the law expressed by the terms of the trust or intended by the
settlor to be the proper law, or the law with which the trust has its
closest connection at the time of its creation, does not provide for
trusts or the category of trusts involved, then the proper law of the
trust shall be the law of Niue.
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(2) In ascertaining the law with which a trust has its closest connection, reference shall be made in particular to –
(a) The place of administration of the trust designated by the settlor; (b) The situs of the assets of the trust;
(c) The place of residence or business of the trustee;
(d) The objects of the trust and the places where they are to be fulfilled.
(3) The terms of a trust may provide for a severable aspect of the trust
(particularly the administration of the trust) to be governed by a different law
from the proper law of the trust.
(4) The terms of a trust may provide for the proper law of the trust or the
law governing a severable aspect of the trust to be changed from the law of one
jurisdiction to the law of another jurisdiction.
(5) Where the proper law of a trust or the law governing a severable aspect
of a trust is changed from the law of another jurisdiction (here called “the old
law”) to the law of Niue no provision of the old law shall operate so as to render
the trust void, invalid, or unlawful or to render void, invalid or unlawful any
functions conferred on the trustee under the law of Niue.
(6) Where the proper law of a trust or the laws governing a severable aspect
of a trust is changed from the law of Niue to the law of another jurisdiction (here
called “the old law”) no provision of the law of Niue shall operate so as to render
the trust void, invalid or unlawful or to render void, invalid or unlawful any
functions conferred on the trustee under the new law.
(7) This Act shall not apply and the Trustee Act 1956 shall continue to apply
to a trust created on or after 28 March 1994 where –
(a) The trust substantially provides benefits for an individual ordinarily
resident in or domiciled in Niue; or
(b) The trust substantially provides benefits for any corporation or other
entity owned by an individual ordinarily resident or domiciled in
Niue,
6 Creation of a trust
(1) A trust other than a unit trust may be created by an instrument in writing
(including a will or codicil), by conduct, by operation of law, or in any other manner
whatsoever.
(2) A unit trust may be created only by an instrument in writing.
(3) No formalities or technical expresses are required for the creation of a
trust provided that the intention of the settlor to create a trust is clearly manifested.
(4) A trust (other than a trust by operation of law) respecting land situated
in Niue shall not be enforceable.
7 Maximum duration of a trust and of accumulation of income
(1) Subject to subsection (2), the maximum duration of a trust shall be 120
years from the date of its creation and a trust shall terminate on the 120th
anniversary of the date of its creation unless it is terminated sooner.
(2) Subsection (1) shall not apply to a trust established exclusively for a
charitable purpose or purposes.
(3) The rule of law known as the rule against perpetuities shall not apply
to any trust to which this section applies.
(4) The terms of a trust may direct or authorise the accumulation of all or
part of the income of the trust for a period not exceeding the maximum duration
of the trust.
Trusts Act 1994 1705
8 Validity of a trust
(1) Subject to this Act, a trust shall be valid and enforceable in accordance
with its terms.
(2) A trust shall be invalid and unenforceable –
(a) To the extent that –
(i) it purports to do anything contrary to the law of Niue; or
(ii) it purports to confer any right or power or impose any
obligation the exercise of which or the carrying out of which is
contrary to the law of Niue; or
(iii) it has no beneficiary identifiable or ascertainable (unless the
trust was created for a valid charitable or non-charitable
purpose);
(b) To the extent that the Court declares that –
(i) the trust was established by duress, fraud, mistake, undue
influence or misrepresentation; or
(ii) the trust is immoral or contrary to public policy; or
(iii) the terms of the trust are so uncertain that its performance is
rendered impossible (provided that a charitable purpose shall
be deemed always to be capable of performance); or
(iv) the settlor was, at the time of its creation, incapable under the
law in force in Niue of creating such a trust.
(3) Where a trust is created for 2 or more purposes of which some are lawful
and others are not, or where some of the terms of a trust are invalid and others are
not –
(a) If those purposes cannot be separated or the terms cannot be separated, the trust is invalid;
(b) If those purposes can be separated or the terms can be separated,
the Court may declare that the trust is valid as to the terms which
are valid and the purposes which are lawful.
(4) Where a trust is partially invalid the Court may declare what property
is to be held subject to the trust.
(5) Property provided by a settlor and as to which a trust is invalid shall,
subject to any order of the Court, be held by the trust for the settlor absolutely or,
if he is dead, as if it had formed part of his estate at his death.
(6) Where a trust is created under the law of Niue, the Court shall not vary
it or set it aside or recognise the validity of any claim against the trust property
under the law of another jurisdiction or the order of a court of another jurisdiction
in respect of –
(a) The personal and proprietary consequences of marriage or the
termination of marriage;
(b) Succession rights (whether testate or intestate) including the fixed
shares of spouses or relatives; or
(c) The claims of creditors in an insolvency.
9 Property which may be held on trust
(1) Any property may be held by or vested in a trustee upon trust.
(2) A trustee may accept from any person property to be held on trust.
(3) A trustee shall not be bound to accept property to be held on trust, but
where a trustee accepts property subject to the performance of an obligation the
trustee shall be deemed to have given to the obligee for good consideration an
undertaking to perform that obligation.
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(4) Where a settlor declares a trust respecting property he does not own at the time of the declaration, then –
(a) The trust is incompletely constituted at the time of the declaration and no rights or duties arise thereunder, but
(b) If the settlor subsequently receives property which was the intended subject matter of the declaration of trust, the Court shall at the instance of the beneficiary or the trustee (and whether the beneficiary has given consideration for the declaration of trust or not) compel the settlor to transfer that property to the trustee or to hold that property on the terms of the trust.
PART 2
THE SETTLOR, BENEFICIARIES AND PURPOSES OF A TRUST
10 Who may be the settlor of a trust
(1) Any person who has under the law of Niue the capacity to own and
transfer property may be the settlor of a trust.
(2) The settlor may also be a trustee, a beneficiary or a protector of the
trust.
11 Beneficiaries of a trust
(1) A beneficiary shall be identifiable by name or ascertainable by reference
to a relationship of some person (whether or not living at the time of creation of
the trust) or otherwise by reference to a description or to a class.
(2) The terms of a trust may –
(a) Provide for the addition of a person as a beneficiary or the exclusion
of a beneficiary from benefit under the trust;
(b) Impose an obligation on a beneficiary as a condition of benefit under
the trust;
(3) Where a trust is in favour of a class of persons then, subject to the terms
of the trust –
(a) The class closes when it is no longer possible for any other person
to become a member of the class;
(b) A woman over the age of 60 years shall be deemed to be no longer
capable of bearing a child; and
(c) Where the interest of the class relates to income, and no member of
the class exists, the income shall be accumulated and retained until
a member of the class exits or the class closes.
(4) A beneficiary may –
(a) Disclaim his whole interest under a trust; or
(b) Subject to the terms of the trust, disclaim part of his interest under
a trust (whether or not he has received some benefit from his
interest);
(5) Subject to the terms of the trust, a disclaimer –
(a) Shall be in writing;
(b) May be temporary; and
(c) May, if the disclaimer so provides, be revoked in the manner and
under the circumstances specified therein.
(6) Where a beneficiary disclaims the whole or part of his interest under a
trust the like consequences shall apply under section 7(5) as if the trust were invalid
with respect to that interest or that part.
Trusts Act 1994 1707
12 Nature of a beneficial interest
(1) The interest of a beneficiary is personal property.
(2) Subject to the terms of the trust, the interest of a beneficiary may be
sold, pledged, charged, transferred or otherwise dealt with in any manner
whatsoever.
13 Protective or spendthrift trusts
(1) The terms of a trust may make the interest of a beneficiary –
(a) Subject to termination;
(b) Subject to restriction on alienation of or dealing in that interest or
any part of that interest; or
(c) Subject to diminution or termination in the event of the beneficiary
becoming insolvent or any of his property becoming liable to seizure
or sequestration for the benefit o his creditors and such a trust shall
be known as a protective or a spendthrift trust.
(2) Where any property is directed to be held on protective or spendthrift
trust for the benefit of a beneficiary, the trustee shall hold that property –
(a) In trust to pay the income to the beneficiary until the interest
terminates in accordance with the terms of the trust or a determining
event occurs; and
(b) If a determining event occurs, and while the interest of the
beneficiary continues, in trust to pay the income to such of the
following (and if more than one in such shares) as the trustee in his
absolute discretion shall appoint –
(i) the beneficiary and any spouse or child of the beneficiary; or
(ii) if there is no spouse or child of the beneficiary the beneficiary
and the persons who would be entitled to the estate of the
beneficiary if he had then died intestate and domiciled in Niue.
(3) In subsection (2) “determining event” means the occurrence of any event
or any act or omission on the part of the beneficiary (other than the giving of
consent to an advancement of trust property) which would result in the whole or
part of the income of the beneficiary from the trust becoming payable to any person
other than the beneficiary.
(4) Any rule of law or public policy which prevents a settlor from
establishing a protective or a spendthrift trust of which he is a beneficiary is hereby
abolished.
14 Letters or memoranda of wishes
(1) The settlor of a trust may give to the trustee a letter of his wishes or the
trustee may prepare a memorandum of the wishes of the settlor with regard to the
exercise of any functions conferred on the trustee by the terms of the trust.
(2) A beneficiary of a trust may give to the trustee a letter of his wishes or
the trustee may prepare a memorandum of the wishes of the beneficiary with
regard to the exercise of any functions conferred on the trustee by the terms of the
trust.
(3) Where a trust is in favour of a class of persons then a member of that class may give to the trustee a letter of his wishes or the trustee may prepare a memorandum of the wishes of that member with regard to the exercise of any functions conferred on the trustee by the terms of that trust.
(4) Where a letter of wishes or a memorandum of wishes is given to or
prepared by the trustee of a trust then –
1708 Niue Laws 2006 Vol 3
(a) The trustee may have regard to the letter or memorandum in exercising any functions conferred upon him by the terms of the trust; but
(b) The trustees shall not be bound to have regard to that letter or memorandum and shall not be accountable in any way for his failure or refusal to have regard to that letter or memorandum.
(5) No fiduciary duty or obligation shall be imposed on a trustee merely by the giving to him of a letter of wishes or the preparation by him of a memorandum of wishes.
15 Definition of charitable purposes
(1) For the purposes of this Act, and subject to subsections (2) and (3), the
following purposes shall be regarded as charitable –
(a) The relief of poverty;
(b) The advancement of education;
(c) The advancement of religion;
(d) The protection of the environment;
(e) The advancement of human rights and fundamental freedoms;
(f) The advancement of amateur sport;
(g) Any other purposes which are beneficial to the community.
(2) A purpose shall not be regarded as charitable unless the fulfillment of
that purpose is for the benefit of the community or a substantial section of the
community having regard to the type and nature of the purpose.
(3) A purpose may be regarded as charitable whether it is to be carried out
in Niue or elsewhere and whether it is beneficial to the community in Niue or
elsewhere.
16 Trusts for non-charitable purposes
(1) A trust may be created for the purpose which is non-charitable provided
that –
(a) The purpose is specific, reasonable and capable of fulfillment;
(b) The purpose is not immoral, unlawful or contrary to public policy;
and
(c) The terms of the trust provide for the appointment of a protector
who is capable of enforcing the trust and for the appointment of a
successor to any protector.
(2) If Cabinet, on the advice of the Minister, has reason to believe that there
is no protector of a trust for a non-charitable purpose or the protector is unwilling or incapable of acting, it may appoint a person to be protector of the trust and such person shall from the date of appointment exercise the functions of protector of the trust.
PART 3
PROTECTORS AND TRUSTEES
17 The protector of a trust
(1) The terms of a trust may provide for the office of protector of the trust.
(2) The protector shall have the following powers –
(a) (Unless the terms of the trust shall otherwise provide) the power to
remove a trustee and to appoint a new or additional trustee;
(b) Such further powers as are conferred on the protector by the terms
of the trust or of this Act.
(3) The protector of a trust may also be a settlor, a trustee or a beneficiary
of the trust.
Trusts Act 1994 1709
(4) In the exercise of his office, the protector shall not be accounted or regarded as a trustee.
(5) Subject to the terms of the trust, in the exercise of his office a protector shall owe a fiduciary duty to the beneficiaries of the trust or to the purpose for which the trust is created.
(6) Where there is more than one protector of a trust then, subject to the
terms of the trust, any functions conferred on the protectors may be exercised if
more than one half of the protectors for the time being agree on its exercise.
(7) A protector who dissents from a decision of the majority of protectors
may require his dissent to be recorded in writing.
18 Who may be the trustee of a trust
(1) Any person who has under the law of Niue the capacity to own and
transfer property may be the trustee of a trust.
(2) The trustee may also be a settlor, a beneficiary or a protector of the
trust.
19 The number of trustees
(1) Unless the terms of the trust provide for a greater number, the minimum
of trustees shall be one.
(2) A trust shall not cease to be valid only on the ground that there is no
trustee or fewer than the number of trustees required by the terms of the trust.
(3) Where there is no trustee or fewer than the number of trustees required
by the terms of the trust, the necessary number of new or additional trustees shall
be appointed and until the minimum number is reached the surviving trustee (if
any) shall act only for the purpose of preserving the trust property.
(4) Except in the case of a trust established for a charitable purpose –
(a) The number of trustees shall be not more than 4; and
(b) If at any time there are more than 4 persons named as trustees, only
the first 4 persons so named shall be the trustees of the trust.
20 Appointment of new or additional trustees
(1) Where the terms of a trust contain no provision for the appointment of
a new or additional trustee, then –
(a) The protector (if any); or
(b) The trustees for the time being (but so that a trustee shall not be
required to join in the appointment of his replacement); or
(c) The last remaining trustee; or
(d) The personal representative or liquidator of the last remaining
trustee; or
(e) If there is no such person (or no such person willing to act) the
Court may appoint a new or additional trustee.
(2) Subject to the terms of the trust, a trustee appointed under this section
shall have the same functions and may act as if he had been originally appointed
a trustee.
(3) On the appointment of a new or additional trustee, anything requisite
for vesting the trust property in the trustees for the time being of the trust shall be
done.
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21 Appointment of trustee resident in Niue
(1) Where there is no trustee resident in Niue, a beneficiary may apply for
the appointment of a person, resident in Niue and nominated in the application,
as an additional trustee.
(2) The Court –
(a) If satisfied that notice of the application has been served on the
existing trustee;
(b) Having heard any representations; and
(c) Having ascertained that the person nominated is willing to act;
may appoint that person as an additional trustee.
(3) Notwithstanding section 19, the power contained in this section may
be exercised even if it results in there being more than 4 trustees for the time being
of the trust.
(4) The terms of a trust may expressly exclude the operation of subsections
(1) and (2).
22 Renunciation of trusteeship
(1) No person shall be obliged to accept appointment as a trustee, but a
person nominated as trustee who knowingly intermeddles with the trust property
shall be deemed to have accepted appointment as a trustee.
(2) A person who has not accepted and is not deemed to have accepted
appointment as a trustee of a trust may within a reasonable period of time after
becoming aware of this nomination as trustee –
(a) Disclaim his appointment by notice in writing to the other trustees
of such trust (if any); or
(b) If there are no such other trustees or such other trustees cannot be
contacted, apply to the Court for relief from his appointment and
the Court may make such order as it thinks fit.
(3) A person nominated as a trustee who does not act under subsection (2)
within a reasonable period of becoming aware of his nomination shall be deemed
to have accepted appointment as a trustee.
23 Resignation or removal of trustees
(1) A trustee other than a sole trustee may resign by notice in writing to his
co-trustees.
(2) A trustee shall cease to be a trustee immediately upon –
(a) The delivery of a notice of resignation under subsection (1);
(b) His removal from office by the Court;
(c) His removal from office by the protector of the trust;
(d) The coming into effect of or the exercise of a power under a provision
in the terms of the trust under which he is removed from, or
otherwise ceases to hold, his office.
(3) A person who ceases to be a trustee shall do everything necessary to
vest the trust property in the new or continuing trustees.
(4) When a trustee resigns or is removed –
(a) He shall, subject to paragraph (b), daily surrender all trust property
held by or vested in him or otherwise under his control;
(b) He may require that he be provided with reasonable security for
liabilities (existing, future, contingent or other) before surrendering
the trust property.
(5) A former trustee shall not be liable to any trustee or to any beneficiary
or other person interested under the trust for any act or omission in relation to the
Trusts Act 1994 1711
trust property or to his functions as a trustee, except for any liability –
(a) Arising from a breach of trust to which the trustee (or, in the case of
a corporate trustee, any of its officers or employees) was a party or
was privy;
(b) In respect of an action to recover from the trustee (or, in the case of
a corporate trustee, any of its officers or employees) trust property
or the proceeds thereof in his possession or under his control.
24 Nature of trustees’ and protectors’ interests
(1) Subject to subsection (2) –
(a) The interest of a trustee or protector in the trust property is limited
to that which is necessary for the proper performance of the trust;
and
(b) The trust property does not form part of the trustee’s or protector ’s
estate.
(2) Where a trustee or protector of a trust is also a beneficiary of it,
subsection (1) does not apply to his interest as a beneficiary.
(3) Where a trustee or protector becomes insolvent, or upon his property
becoming liable to distraint, seizure, sequestration or similar process of law, his
creditors shall have no recourse against the trust property except to the extent
that the trustee or protector himself has a claim against it or a beneficial interest in
it.
25 Corporate trustee may act by resolution
A corporate trustee may –
(a) Act in connection with a trust by a resolution of the corporate trustee
or of its Board of Directors or other governing body; or
(b) Appoint an officer or employee to act on its behalf in connection
with the trust.
26 Trustees of more than one trust
(1) A trustee is not, in the absence of fraud, affected by notice of any
instrument, matter, fact or thing in relation to a trust if he obtained notice of it by
reason of his acting or having acted as trustee of another trust.
(2) A trustee of a trust shall disclose to his co-trustees any interest which
he has as trustee of another trust if any transaction in relation to the first mentioned
trust is to be entered into with the trustees of the other trust.
27 Dealings by trustees with third parties
(1) Where, in a transaction or matter affecting a trust, a trustee informs a
third party that he is acting as trustee, a claim by the third party in respect of the
transaction or matter shall, subject to subsection (3), extend only to the trust
property.
(2) If the trustee fails to inform the third party that he is acting as trustee –
(a) He incurs personal liability to the third party in respect of the
transaction or matter; and
(b) He has a right of indemnity against the trust property in respect of
his personal liability, unless he acted in breach of trust.
(3) Nothing in this section shall prejudice any claim for breach of warranty
or authority.
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Niue Laws 2006 Vol 3
(4) A bona fide purchaser for value without notice of a breach of trust – (a) May deal with a trustee in relation to trust property as if the trustee
were the beneficial owner of it; and
(b) Is not affected by the trusts on which the property is held.
(5) A third party paying or advancing money to a trustee is not concerned
to see –
(a) That the money is needed in the proper exercise of the trust functions;
(b) That no more than is so needed is raised; or
(c) That the transaction or the application of the money is proper.
(6) In this section “third party” means a person other than a settlor, trustee,
protector or beneficiary of the trust.
PART 4
DUTIES AND POWERS OF TRUSTEES
28 General duties of trustees
(1) A trustee shall in the execution of his functions –
(a) Act with due diligence; and
(b) Observe utmost good faith; and
(c) Act to the best of his skills and abilities; and
(d) Exercise the standard or care of a reasonable and prudent man of
business.
(2) A trustee shall carry out and administer the trust under this Act and,
subject to it, in accordance with the terms of the trust.
(3) A trustee shall owe a fiduciary duty to the beneficiaries of the trust, the
members of a class for whose benefit the trust was established, or the purpose for
which the trust was established.
(4) Where a fiduciary duty is owed to a purpose for which a trust was
established, that duty may be enforced by the protector of the trust or (in the case
of a trust established for a charitable purpose) by the Minister.
(5) A trustee shall, subject to the terms of the trust and to the provisions of
this Act –
(a) Ensure that the trust property is held by or vested in him or is otherwise under his control; and
(b) Preserve and, so far as is reasonable, enhance the value of the trust
property.
(6) Except with the approval of the Court or in accordance with the terms
of the trust or the provisions of this Act, a trustee shall not –
(a) Derive, directly or indirectly, any profit from his trusteeship;
(b) Cause or permit any other person directly or indirectly to derive
any profit from his trusteeship; or
(c) On his own account enter into any transaction with his co-trustees
or relating to the trust property which may result in any such profit.
(7) The trustee of a trust shall keep accurate accounts and records of his
trusteeship.
(8) A trustee shall keep trust property separate from his own property and
separately identifiable from any other property of which he is a trustee.
Trusts Act 1994 1713
29 Duty to supply information and duty of confidentiality
(1) A trustee shall so far as reasonable and within a reasonable time of
receiving a request in writing to that effect, provide full and accurate information
as to the state and amount of the trust property and the conduct of the trust
administration to –
(a) The Court;
(b) The settlor or protector of the trust;
(c) In the case of a trust established for a charitable purpose, the
Minister;
(d) Subject to the terms of the trust, any beneficiary of the trust who is
of full age and capacity; and
(e) Subject to the terms of the trust, any charity for the benefit of which
the trust was established.
(2) Subject to this Act and to the terms of the trust, and except as is necessary
for the proper administration of the trust or by reason of any other Act, the trustee
of a trust shall keep confidential all information regarding the state and amount
of the trust property or the conduct of the trust administration.
(3) A trustee is not (subject to the terms of the trust and to any order of the
Court) obliged to disclose documents which reveal –
(a) His deliberations as to how he should exercise his functions as
trustee;
(b) The reasons for any decision made in the exercise of those functions;
(c) Any material upon which such a decision was or might have been
based.
30 Duty of trustees to act together
(1) Subject to the terms of the trust, all the trustees of a trust shall join in
the execution of the trust.
(2) Subject to subsections (3) and (4), no functions conferred on trustees
shall be exercised unless all the trustees agree on their exercise.
(3) Subject to the terms of the trust and to subsection (4), any functions
conferred on trustees of a charitable trust shall be exercised if more than one of
the trustees for the time being of the trust agree on their exercise.
(4) The terms of a trust may empower the trustees to act individually or
by a majority with respect to the exercise of some of all of the functions conferred
on the trustees or to delegate the exercise of these functions to one or more trustees.
(5) A trustee who dissents from a decision of the majority of trustees or of
a co-trustee or of the trustees to whom any functions have been delegated may
require his dissent to be recorded in writing.
31 Duty to act impartially
(1) Subject to the terms of the trust, where a trust is established for one or
more beneficiaries or purposes (whether concurrent or consecutive), a trustee (other
than a trustee who is also a beneficiary) shall act impartially as between these
beneficiaries and purposes.
(2) Subject to the terms of the trust and to the provisions of this Act, any
rule of law which requires a trustee to buy, hold or sell certain investments or to
apportion the capital or income of the trust fund between beneficiaries is hereby
abolished.
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32 General powers of trustees
(1) Subject to the terms of the trust and the provisions of the Act, a trustee
shall have in relation to the trust property all the powers of a beneficial owner.
(2) Subject to the terms of the trust and the provisions of this Act, a trustee
shall exercise his functions only in the interests of the beneficiaries or of the purpose
for which the trust is established and in accordance with the terms of the trust.
(3) Where the terms of a trust provide that the trustee may add or remove
beneficiaries or purposes for which the trust is established, then if such power is
exercised properly and on the basis of valid considerations the exercise of the
power shall not be regarded as a breach of the duty of the trustee under the trust.
(4) A trustee may sue and be sued as trustee.
(5) The terms of a trust may require a trustee to consult or obtain the consent
of another person before exercising any functions under this trust.
(6) Where he considers it necessary or desirable in the interests of the good
administration of the trust, a trustee may consult a lawyer, accountant, investment
advisor or other person in relation to the affairs of the trust.
(7) A person shall not, merely by virtue of giving or refusing his consent to
the exercise of any functions or being consulted in relation to the affairs of a trust,
be deemed to be a trustee or to owe a fiduciary duty to the beneficiaries of the
trust.
33 Powers of investment
(1) Subject to the terms of the trust and to the provisions of this Act, a
trustee may invest any money requiring investment in any investment or property
of whatsoever nature and wheresoever situated and whether producing income
or not and whether involving any liability or not and upon such security (if any)
as the trustee shall in his absolute discretion think fit as if the trustee were the
absolute owner of it.
(2) Where the terms of a trust or any other instrument provide that any
money requiring investing shall only be invested in “authorised trustee
investments” (or any similar expression) then the money shall be invested only in
such investments as are specified in Schedule 1.
(3) The terms of a trust may provide that Schedule 1 shall apply to the
trust with such modifications as are specified by the terms of the trust.
(4) Cabinet may, on the advice of the Minister, by Order published in the
Gazette amend the list of authorised trustee investments in paragraph 1 of Schedule
1.
(5) A trustee shall not be liable for breach of trust by reason only of continuing to hold an investment which has ceased to be an investment authorised by the terms of the trust or by the general law.
(6) Subject to the terms of the trust, in selecting investments a trustee or
(as the case may be) any investment advisor or other person to whom the trustee
has delegated the management of the trust property shall have regard –
(a) To the need of diversification of investments in the trust, in so far
as is appropriate to the circumstances of the trust; and
(b) To the suitability to the trust of the investments proposed.
(7) Subject to the terms of the trust, before investing money in any
investment a trustee shall consider whether he should obtain appropriate advice
as to whether the investment is suitable and satisfactory and (if he considers that
the obtaining of such advice is necessary) shall obtain and consider such advice
accordingly.
Trusts Act 1994 1715
(8) Subject to the terms of the trust, a trustee shall determine whether and at what intervals he should obtain appropriate advice as to whether the existing investments of the trust are suitable and satisfactory and (if he considers that the obtaining of such advice is necessary) shall obtain ad consider such advice accordingly.
(9) For the purposes of subsections (7) and (8), advice is appropriate if it is
the advice of a person who is reasonably believed by the trustee to be qualified to
give such advice; and such advice may be given by a person notwithstanding that
he gives it in the course of his employment (including employment with a trustee
of the trust).
34 Implied powers of trustee
(1) Subject to the terms of the trust, the powers contained in Schedule 2
shall apply to all trusts to which this section applies.
(2) The terms of a trust may provide that some or all of the powers
contained in Schedule 2 shall apply to that trust and with or without modification.
35 Delegation by trustees
(1) A trustee may not delegate the exercise of his functions unless permitted
to do so by this Act or by the terms of the trust.
(2) Except where the terms of the trust provide to the contrary, a trustee
may –
(a) Delegate the management of trust property to and appoint investment managers whom the trustee reasonably considers to be qualified to manage the investment of the trust property;
(b) Appoint and employ any lawyer, accountant or other person to act in relation to any of the affairs of the trust or to hold any of the trust property; and
(c) Authorise any such manager or person to retain or receive
commission or other payment usually payable for services of the
description rendered.
(3) A trustee shall not be liable for any loss arising to the trust from a
delegation or appointment under subsection (2) or from the default of any such delegate or appointee provided that the trustee exercised the standard of care of a reasonable and prudent man of business in –
(a) The selection of the delegate or appointee; and
(b) The supervision of the activities of the delegate or appointee.
36 Reimbursements of expenses
A trustee shall be entitled to be reimbursed out of the trust property all
expenses properly incurred by him in connection with the trust.
37 Payment of trustees
(1) Subject to the terms of the trust, an individual trustee engaged in any
profession or business shall be entitled to charge and be paid all usual professional
or other charges for business transacted, time spent and acts done by him or any
partner or employee of his or of his firm in connection with the trust including
acts which a trustee not being engaged in any profession or business could have
done personally.
(2) Subject to the terms of the trust, a corporate trustee shall be entitled to
such remuneration as may from time to time be agreed in writing between such
corporation and the settlor or protector of (in the absence of such agreement) in
accordance with its standard terms and conditions as to the administration of
trusts current from time to time.
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(3) Where the terms of the trust provide that a trustee shall not receive any payment for acting as such, payment may nevertheless be authorised –
(a) By the Court; or
(b) By some or all of the beneficiaries of the trust:
Provided that a beneficiary may not authorise such payment if the beneficiary –
(i) is a minor or a person under legal disability;
(ii) does not have full knowledge of all material facts; or
(iii) is improperly induced by the trustee to authorise such payment.
(4) Where only some of the beneficiaries authorise payment to a trustee
under subsection (3), the payment shall be made out of the share of the trust
property which in the opinion of the trustee is referable to the interests of those
beneficiaries who so authorise payment.
38 Power to appropriate
Subject to the terms of the trust, a trustee may, without the consent of any
beneficiary, appropriate trust property in or towards satisfaction of the interest of
a beneficiary in such manner and in accordance with such valuation as he considers
appropriate.
39 Power and duty of maintenance
Subject to the terms of the trust and to any prior interest or charge affecting
the trust property, where any property is held by a trustee in trust for any
beneficiary for any interest whatsoever –
(a) While the beneficiary is a minor, the trustee –
(i) may pay to the parent or guardian of the beneficiary or
otherwise apply the whole or part of the income attributable
to that interest for or towards the maintenance, education or
benefit of the beneficiary; and
(ii) shall accumulate the residue of that income as an accretion to
the trust property and as one fund with the trust property for
all purposes:
Provided that the trustee may while the beneficiary is a minor apply those
accumulations as if they were income of the then current year; and
(b) If the beneficiary is no longer a minor and his interest has not yet
vested in possession, the trustee shall thenceforth pay the income
attributable to the interest to the beneficiary until his interest vests
in possession or terminates.
40 Power of advancement
(1) Subject to the terms of the trust, a trustee may in his discretion pay or
apply trust property for the advancement or benefit of any beneficiary whose
interest in the trust has not yet vested in possession.
(2) (a) Any trust property so paid or applied shall be brought into account
in determining the share of the beneficiary in the trust property.
(b) No such payment or application shall be made which prejudices
any person entitled to any prior interest unless such person is of
full age and consents to the payment or application or (if such person
is not of full age) the Court consents.
(c) The part of the trust property so paid or advanced shall not exceed
the presumptive share of the beneficiary in the trust property.
Trusts Act 1994 1717
41 Accumulation and maintenance settlements
Where property is directed to be held on accumulation and maintenance
trusts for the benefit of a beneficiary or a class of beneficiaries, the provisions of
sections 40 and 41 (unless the terms of the trust otherwise provide) apply to the
interest of such beneficiary or beneficiaries.
42 Receipts of parents or guardians
The receipt of a parent or guardian of a beneficiary who is a minor or is
under legal disability shall be a sufficient discharge to the trustee for a payment
made to or for the benefit of the beneficiary.
43 Power of appointment
The terms of a trust may confer on the trustee or any other person power to
appoint all or any part of the trust property or any interest in the trust property to,
or to trustees for the benefit of, any person or valid charitable or non-charitable
purpose (whether or not such person was a beneficiary of the trust or such purpose
was an object of the trust prior to such appointment).
44 Power of revocation or variation
(1) A trust and any exercise of a power or discretion under a trust may be
expressed to be capable of revocation (in whole or in part) or of variation.
(2) No such revocation or variation shall prejudice anything lawfully done
by a trustee in relation to the trust before he receives notice of the revocation or
variation.
(3) Subject to the terms of the trust, if a trust is revoked in whole or in part,
the trustee shall hold the trust property, or the part of the trust property which is
the subject of the revocation, in trust for the settlor absolutely or, if he is dead, as
if it had formed part of his estate at death.
(4) In so far as the terms of a trust make no provision for revocation of the
trust, then the trust shall be irrevocable.
PART 5
TERMINATION OR FAILURE OF TRUSTS
45 Failure or lapse of interest
(1) Subject to the terms of the trust and to any order of the Court, where –
(a) An interest lapses;
(b) A trust terminates; or
(c) There is no beneficiary and no person (whether or not then living)
who can become a beneficiary in accordance with the terms of the
trust;
the interest or property concerned shall be held by the trustee in trust for the
settlor absolutely, if he is dead, as if it had formed part of his estate at death.
(2) Subsection (1) shall not apply to a trust established for a charitable
purpose to which section 46 applies.
46 Application of property held on charitable trusts
(1) Where trust property is held for a charitable purpose and –
(a) The purpose has been, as far as may be, fulfilled;
(b) The purpose cannot be carried out at all, or not under directions
given and to the spirit of the gift;
(c) The purpose provides a use for part only of the property;
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(d) The property, and other property applicable for a similar purpose, can be more effectively used in conjunction, and to that end can more suitably be applied to a common purpose;
(e) The purpose was laid down by reference to an area which was then, but has since ceased to be a unit for some other purpose, or by reference to a class of persons or to an area which has for any reason since ceased to be suitable or to be practicable in administering the gift;
(f) The purpose has been adequately provided for by other means;
(g) The purpose has ceased to be charitable (by being useless or harmful
to the community or otherwise); or
(h) The purpose has ceased in any other way to provide a suitable and
effective method of using the property;
the property, or the remainder of the property, as the case may be, shall be held for
such other charitable purpose as the Court, on the application of the Minister or
the trustee, may declare to be consistent with the original intention of the settlor.
(2) Where trust property is held for a charitable purpose, the Court, on the
application of the Minister or the trustee, may approve any arrangement which
varies or revokes the purposes or terms of the trust or enlarges or modifies the
powers of management or administration of the trustee, if it is satisfied that the
arrangement –
(a) Is no suitable or expedient; and
(b) Is consistent with the original intention of the settlor.
(3) The Court shall not make a declaration under subsection (1) or approve
an arrangement under subsection (2) unless satisfied that any person with a
material interest in the trust has had an opportunity of being heard.
47 Termination of trusts
(1) On the termination of a trust, the trust property shall, subject to
subsection (2), be distributed by the trustee within a reasonable time in accordance
with the terms of the trust to the persons entitled.
(2) The trustee may retain sufficient assets to make reasonable provision
for liabilities (existing, future, contingent or other).
48 Termination by beneficiaries
(1) Without prejudice to any power of the Court and notwithstanding
the terms of the trust, where all the beneficiaries are in existence and have been
ascertained, and none is a person under legal disability or a minor, and all
beneficiaries are in agreement so to do, they may require the trustee to terminate
the trust and distribute the trust property as the beneficiaries direct.
(2) A beneficiary of an interest under a protective or spendthrift trust may
not enter into such an agreement as is referred to in subsection (1).
49 Variation of trusts
PART 6
VARIATION OF TRUSTS
(1) The Court may, on the application of any beneficiary, the trustee, the settlor or his personal representatives, or the protector of a trust, approve on behalf of –
(a) A minor or a person under legal disability having, directly or
indirectly, an interest, vested or contingent, under the trust;
(b) Any person unborn;
Trusts Act 1994 1719
(c) Any person who is presently unascertained but who may become entitled, directly or indirectly, to an interest under the trust, as being (at a future date or on the happening of a future event) a person of any specified description or a member of any specified class; or
(d) Any person, in respect of an interest that may accrue to him by virtue of the exercise of a discretionary power on the failure or determination of an interest under a protective or spendthrift trust –
any arrangement which varies or revokes the terms of the trust or enlarges or modified the powers of management or administration of the trustee, whether or not there is another person with a beneficial interest who is capable of assenting to the arrangement:
(2) The Court shall not approve an arrangement on behalf of a person
mentioned in subsection (1) (a), (b) or (c) unless the arrangement appears to be for
his benefit.
50 Approval of particular transaction
Where, in the management or administration of a trust, a transaction is, in
the opinion of the Court, expedient, but cannot be effected because the necessary
power has not been conferred on the trustee by the terms of the trust or by law,
the Court, on the application of the trustee –
(a) May confer upon the trustee, generally or in any particular
circumstances, the necessary power, on such terms and subject to
such conditions as the Court thinks fit; and
(b) May direct the manner in which, and the property from which, any
monies authorised to be expended, and the costs of any transaction,
are to be paid or borne.
PART 7
BREACH OF TRUST
51 Liability for breach of trust
(1) Subject to this Act and to the terms of the trust, a trustee who commits
or concurs in a breach of trust is liable for –
(a) Any loss or depreciation in value of the trust property resulting
from the breach; and
(b) Any profit which would have accrued to the trust had there been
no breach.
(2) A trustee may not set-off a profit accruing from one breach of trust
against a loss or depreciation in value resulting from another.
(3) A trustee is not liable for a breach of trust committed by another person
prior to his appointment or for a breach of trust committed by a co-trustee unless –
(a) He becomes or ought to have become aware of the breach; and
(b) He actively conceals the breach, or fails within a reasonable time to
take proper steps to protect or restore the trust property or to prevent
the breach.
(4) Where trustees are liable for a breach of trust, they are liable jointly and
severally.
(5) A trustee who becomes aware of a breach of trust shall take all
reasonable steps to have the breach remedied.
(6) Nothing in terms of a trust shall relieve a trustee of liability for a breach
of trust arising from his own fraud or wilful misconduct.
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52 Constructive trusts
(1) A person who derives a profit from a breach of trust, or who obtains
property in breach of trust, shall be deemed to be a trustee of the property, unless
he derives or obtains it in good faith and without actual constructive or implied
notice of the breach of trust.
(2) A person who becomes a trustee by virtue of subsection (1) shall deliver
up the profit or property to the person properly entitled to it.
(3) This section does not exclude any other circumstances in which a
constructive trust may arise.
53 Tracing trust property
Without prejudice to the personal liability of a trustee, trust property which
has been charged or dealt with in breach of trust, or any property into which it has
been converted, may be followed and recovered unless –
(a) It is no longer identifiable; or
(b) It is in the hands of a bona fide purchaser for value without actual,
constructive or implied notice of the breach of trust.
54 Beneficiary may relieve or indemnify a trustee
(1) A beneficiary may relieve a trustee of liability to him for a breach of
trust or indemnify a trustee against liability for a breach of trust.
(2) Subsection (1) does not apply if the beneficiary –
(a) Is a minor or a person under legal disability;
(b) Does not have full knowledge of all material facts; or
(c) Is improperly induced by the trustee to act under subsection (1).
55 Power to relieve trustees from personal liability
The Court may relieve a trustee wholly or partly of liability for a breach of
trust where it appears to the Court that the trustee has acted honestly and
reasonably and ought fairly to be excused for the breach of trust or for omitting to
obtain the directions of the Court in the matter in which the breach arose.
56 Power to make beneficiaries indemnify
Where a trustee commits a breach of trust at the instigation, at the request
or with the concurrence of a beneficiary, the Court (whether or not the beneficiary
is a minor or a person under legal disability) may impound all or part of his interest
by way of indemnity to the trustee or any person claiming through him.
57 Limitation and prescription
(1) No period of limitation or prescription applies to an action brought
against a trustee –
(a) In respect of any fraud to which the trustee was a party or was
privy; or
(b) To recover from the trustee trust property or the proceeds of it –
(i) held by or vested in him or otherwise in his possession or under
his control; or
(ii) previously received by him or converted to his use.
(2) Subject to subsection (1), the period within which an action founded
on breach of trust may be brought against a trustee is –
(a) Three years from delivery of the final accounts of the trust to the
beneficiaries; or
(b) Three years from the date on which the plaintiff first has knowledge
of the breach of trust, whichever period first begins to run.
Trusts Act 1994 1721
(3) Where the plaintiff if a minor or a person under legal disability, the period referred to in subsection (2) does not begin to run until his minority or disability, as the case may be, ceases.
PART 8
POWERS OF THE COURT
58 Jurisdiction of the Court
The Court has jurisdiction in respect of any matters concerning a trust
where –
(a) The proper law of the trust is the law of Niue; (b) A trustee of the trust is resident in Niue;
(c) Any property of the trust is situated in Niue;
(d) Any part of the administration of the trust is carried on in Niue.
59 General powers of the Court
(1) On the application of a trustee, a beneficiary, a settlor or his personal
representatives, a protector (in the case of a trust established for a charitable
purpose) the Minister or, with the leave of the Court, any other person the Court
may –
(a) Make an order in respect of –
(i) the execution, administration or enforcement of a trust;
(ii) a trustee, including an order as to the exercise by a trustee of
his functions, the removal of a trustee, the appointment,
remuneration or conduct of a trustee, the keeping and
submission of accounts, and the making of payments whether
into Court or otherwise;
(iii) a protector, including an order appointing a protector;
(iv) a beneficiary, or any person connected with a trust;
(v) any trust property, including an order as to the vesting,
preservation, application, surrender or recovery of it;
(b) Make a declaration as to the validity or enforceability of a trust;
(c) Direct the trustee to distribute, or not to distribute the trust property;
(d) Make such order in respect of the termination of the trust and the
distribution of the property as it thinks fit;
(e) Rescind or vary an order or declaration under this Act, or make a
new or further order or declaration.
(2) Where the Court appoints or removes a trustee under this section –
(a) It may impose such requirements and conditions as it thinks fit,
including provisions as to remuneration and requirements or
conditions as to the vesting of trust property;
(b) Subject to the Court’s order, a trustee appointed by the Court has
the same functions, and may act in all respects, as if he had been
originally appointed a trustee.
(3) If a person does not comply with an order of the Court under this Act
requiring him to do any thing, the Court may, on such terms and conditions as it
thinks fit, order that the thing be done by another person, nominated for the
purpose by the Court, at the expense of the person in default (or otherwise, as the
Court directs) and a thing so done has effect in all respects as if done by the person
in default.
1722 Niue Laws 2006 Vol 3
60 Applications for directions
A trustee may apply to the Court for directions as to how he should or
might act in any of the affairs of the trust, and the Court may make such order as
it thinks fit.
61 Payment of costs
The Court may order the costs and expenses of and incidental to an
application of the Court under this Act to be paid from the trust property or in
such manner and by such persons as it thinks fit.
62 Variant types of trust
PART 9
VARIANT TYPES OF TRUST
(1) A settlor may create a trust (in whatever form and whatever name it is known) of a type recognised by the law or rules of his religion or nationality or which is customarily used by his community, provided that –
(a) There is a recital to that effect in the instrument creating the trust;
and
(b) The trust is of a type approved by the Minister by Order published
in the Gazette.
(2) The instrument creating a trust may be written in a language other
than English, provided that a version in the English language certified by the
original trustee to be a true translation is appended to the instrument.
63 Provisions of variant types of trust
A trust of a type approved under section 62 (1) may provide that the trustee
shall hold the trust property –
(a) For a period not exceeding 120 years, to pay or apply the income
and capital of it for the maintenance, education, advance or benefit
of the family of the settlor, and/or for the purpose of performing
acts or services in honour of the settlor or the ancestors of the settlor;
and
(b) Thereafter for the advancement of the settlor ’s religion, or for such
other charitable purpose as the settlor may specify or, if the settlor
has not specified a charitable purpose, for such charitable purpose
as the trustee shall determine.
PART 10
REGISTRATION OF TRUSTS AND EXEMPT TRUSTS
64 Facility to register trusts
(1) The Registrar of the Court shall maintain a register of trusts.
(2) The settlor or a trustee of a trust may apply to the Registrar to enter the
trust on the Register.
(3) An application for entry on the Register shall be accompanied by –
(a) A certified copy of the instrument creating the trust (if any); and
(b) A fee of $300.
(4) The Registrar shall, on receipt of an application for registration, a
certified copy of the instrument creating the trust (if any) and the required fee –
(a) Enter on the Register the name of the trust (if any), the name of the
settlor and the name of the beneficiary or the purpose for which
the trust is established; and
(b) Issue to the trustee a certificate of registration.
Trusts Act 1994 1723
(5) Where the terms of a trust which has been registered are varied, the trustee shall send to the Registrar a notification of such variation together with a fee of $150 and the Registrar shall amend the entry on the Register accordingly and issue an amended certificate of registration.
(6) Where a trust which has been registered terminates, the trustee shall notify the Registrar and return the certificate of registration and the Registrar shall then cancel the entry on the Register and the certificate of registration.
(7) The Register shall not be open for inspection except that the trustee of a trust may in writing authorise a person to inspect the entry of that trust on the Register.
(8) Notwithstanding subsection (7) and section 29, the Register shall be open to inspection by any foreign government or any court and tribunal of any other country including Niue but only if and to the extent that the Court so directs having been satisfied that the information is required and will be used solely for the purposes of an investigation or prosecution of any person in relation to the sale, or the laundering of the proceeds of sale, of any prohibited narcotic substances of the laundering of the proceeds gained from any other serious criminal activity whether that sale or laundering or other serious criminal activity occurred in Niue or elsewhere.
(9) The Minister may increase the fees payable under this section by Order in Cabinet.
(10) Nothing in subsection (7) shall prevent the Court from requiring any person to produce claimants or to give evidence in any proceedings of any facts relevant in such proceedings.
65
if –
Exemption from taxes and duties
(1) For the purposes of this Act a trust shall be an exempt trust in any year
(a) The settlor is not resident in Niue during that year;
(b) None of the beneficiaries are resident in Niue during that year; and
(c) The trust property does not include any land situated in Niue.
(2) In any year when a trust is an exempt trust, then, notwithstanding any
provision to the contrary in any enactment –
(a) The income of the trust for that year shall be exempt from all
provisions of the Income Tax Act 1961;
(b) No estate, inheritance, succession or gift tax or duty shall be payable
with respect to the trust property by reason of any death occurring
during that year; and
(c) All instruments executed in that year and relating to the trust
property or to transactions carried out by the trustee on behalf of
the trust shall be exempt from stamp duty.
(3) In this section “resident” means resident for the purposes of the Income
Tax Act 1961.
–––––––––––––––––––
1724 Niue Laws 2006 Vol 3
SCHEDULES SCHEDULE 1
Authorised Trustee Investments
(a) Securities issued by, or the payment of interest on which is guaranteed
by, the Government of Niue or by any other sovereign state;
(b) Securities issued by, or the payment of interests on which is guaranteed
by, any of the African Development Bank, the Asian Development Bank,
the Caribbean Development Bank, the European Economic Community,
the European Investment Bank, the International Finance Corporation,
the International Monetary Fund, or the International Bank for
Reconstruction and Development;
(c) Any trustee investments authorised by the Trustee Act 1956, the
Commonwealth of Australia or any State or Territory of it, or the United
Kingdom;
(d) Securities issued by or deposits with any Bank registered with the relevant
authorities in any of the jurisdictions in subparagraph (c) or in the United
States of American, the Cook Islands, or Niue;
(e) Freehold property situated in any of the jurisdictions in subparagraph (c)
or leasehold property situated in Niue of which the unexpired term of
the end of the investment is not less than 40 years.
–––––––––––––––––
SCHEDULE 2
Implied Powers of Trustees
Trust for Sale and Investment
1 (1) The trustee shall hold real or immovable property included in the trust
property on trust for sale with power to postpone the sale of the whole or any part of it
for such period as he thinks fit and shall hold all other investments included in the trust
property on trust either (at his discretion) to retain them for such period as he thinks fit or
to sell or otherwise dispose of the whole or any part of them.
(2) The trustee shall hold all money received or held by him as capital money
(including the net proceeds of such sale) on trust to invest it in any manner authorised by
the terms of the trust as he thinks fit.
(3) The trustee may change investments included in the trust property into others
authorised by the terms of the trust.
Powers respecting trustee investments
2 (1) Where in the event that any land, building or chattel were producing income,
the whole of suchincome would or might be payable to any person under the terms of the
trust, the trustee may permit such person together with the members of his household to
reside in and occupy such land or buildings or to enjoy the use or benefit of such chattels
either gratuitously or on such terms as the trustee shall think fit.
(2) The trustee shall have power to purchase any land, building or chattel or any
interest in it in any jurisdiction, provided that the power to purchase land in Niue shall
be limited to the purchase of a leasehold interest only, for the use or occupation of any
one or more persons (such use or occupation to be only under subparagraph (1) or partly
for such use and partly as an investment.
(3) The trustee shall have power to employ any capital of the trust property or to
take such other steps as may be requisite to insure, protect, maintain or preserve or to
improve the value of or to guard against any loss of value of the trust property or the
income thereof.
Trusts Act 1994 1725
Corporations
3 (1) The trustee may promote or incorporate any corporation to carry on any trade
or hold any investments.
(2) Where all or any part of the capital of a corporation is included in the trust
property the assets of such corporation shall not be impressed with any of the trusts but
the trustee may nevertheless cause or procure such corporation to do any act or thing as
regards the assets of the corporation as he is empowered to do as regards the trust property.
Appropriation
4 The trustee shall have power to appropriate any investments or property forming
part of the trust property in its actual state of investment in or towards the satisfaction of
the beneficial interest of any person interested in the trust property upon making such
valuation if any as the trustee may think fit and without the necessity of obtaining the
consent of any person.
Holding and Custody of Investments
5 Investments included in the trust property may be held by or in the name of or
under the control of any person (whether or not a trustee) as nominee or bailee for the
trustee and in that case the trustee shall not be responsible for any default of such nominee
or bailee of good standing appointed in good faith.
Land
6 Subject to the Land Act 1969, the Niue Amendment Act 1968 and any relevant
principles of land law applicable to Niue, where the trust property includes any land (in
this paragraph called “the Land” –
(a) The trustee may lease, mortgage, charge, grant any licence over (whether
exclusive or not) and otherwise dispose of the Land or any interest in it
provided that there shall be no power to sell, mortgage or exchange land
in Niue;
(b) The trustee may spend capital money on erecting buildings on the Land
or on demolishing and rebuilding or on altering or improving buildings
on it or otherwise on improving the Land as he thinks fit (and any
certificate of any architect or surveyor employed by the trustee or of any
trustee who is qualified as an architect or surveyor that the work specified
in such certificate consists only of alteration or improvement shall be
conclusive as between the trustee and all persons interested under the
trust that any capital money spent on such work was properly spent by
the trustee in exercise of the powers conferred by this subparagraph);
(c) The trustee may observe and perform all obligations imposed on or
incurred by him as owner or lessor or lessee of the Land and shall be
entitled to be indemnified out of every part of the trust property against
all personal liability imposed on him by or by any breach of any one or
more of such obligations and in this subparagraph “obligations” includes
every obligation whether imposed by contract or by general law or
otherwise;
(d) The trustee may employ any of the capital of the trust property in
repairing, developing, enlarging, equipping, furnishing, insuring and
maintaining the Land and buildings and fixtures on it.
7 Where the trust property includes any chattel the trustee may employ any of the
capital of the trust property in repairing or insuring such chattel and may store, lend or
hire on such terms as he thinks fit.
1726 Niue Laws 2006 Vol 3
Borrowing
8 (1) The trustee may borrow on such terms as he thinks fit and for such purpose
may mortgage or charge all or any of the assets included in the trust property.
(2) The trustee shall hold any borrowed money as capital of the trust property
and as one fund with other money and investments included in the trust property or as a
separate fund as he shall think fit and shall invest, advance, distribute, pay or otherwise
deal with such money in accordance with the trusts and powers relating to the capital of
the trust property.
(3) The trustee may repay borrowed money and pay interest out of the capital of
the trust property.
Insurance
9 The trustee may effect and maintain out of the capital of the trust property any
policy of insurance or assurance upon the life of any person or under which the death of
any person is one of the events under which money becomes payable.
Loans to Beneficiaries
10 Where in the event that any money forming part only of the trust property were
producing income the whole of such income would or might be payable to any person
under the terms of the trust the trustee may lend such money to that person either free of
interest or upon such terms relating to interest and to repayment and either with or without
security as the trustee thinks fit.
Release of Powers
11 The trustee may in his absolute discretion at any time and by instrument in writing
release or restrict the future exercise of any powers conferred on him by the terms of the
trust or by the general law either wholly or to the extent specified in any such instrument.
Trustees Appointed as Directors
12 Any trustee who shall be or become a director or the holder of any other office or
employment in any company any of whose shares shall form part of the trust property
shall be entitled to retain for his own use and benefit any reasonable fees or remuneration
received by him in connection with such office or employment notwithstanding that his
appointment to or retention of such office or employment may be directly or indirectly
due to the exercise or non-exercise of any votes in respect of any of the shares forming
part of the trust property.
Associated Parties
13 If the trustee places or causes to be placed any banking, broking or other business
with an associated or other person so that (but for this paragraph) he would be liable to
account in any manner to the trust property he shall ensure that such business is done on
such terms as that person would make with an unassociated customer or client and if he
does so he shall not be required to account for any receipt from or profit of such person
from such business.
Sundry Powers
14 (1) The powers of the trustee shall extend to any and every act or omission of the
trustee which is necessary or desirable for the due execution of the trust and the protection
and realisation and the due administration of the investments in the trust property and
the cost of and incidental to every act of the trustee shall be met out of income or capital
of the trust property or partly out of each (as the trustee thinks fit).
(2) In addition to all the powers vested in the trustee by the terms of the trust or
the general law the trustee shall have and may exercise the following powers
(a) To compromise and settle for such consideration and upon such terms
and conditions as the trustee may consider advisable all matters arising
in relation to the trust;
Trusts Act 1994 1727
(b) To pay out of the income or capital of the trust property all the costs of and incidental to the preparation and execution of the trust instrument;
(c) To receive any property from any person as an addition to the trust property either by gift inter vivos or by will or under the provisions of any other trust or otherwise.
Revocable Appointments
15 Any revocable appointment, decision or resolution of the trustee may be treated
by him for any purpose as irrevocable unless and until it is revoked.
1728 Niue W:ws 2006 Vol3
1729
UNITED NATIONS ACT 1946
1946/7 (NZ) – 16 September 1946
|
1 |
Short title |
3 Liability for breach of regulations |
|
2 |
Power to make regulations to enable effect |
4-5 [Spent] |
|
to be given to article 41 |
To confer on the Governor-General in Council power to make regulations to enable New Zealand to fulfil the obligations undertaken by it under article
41 of the Charter of the United Nations
WHEREAS New Zealand is a member of the United Nations and as such is bound by the Charter of the United Nations signed at San Francisco on 26 June, 1945: And whereas article 41 of the Charter is in the following terms:
Article 41
The Security Council may decide what measures not involving the use of
armed force are to be employed to give effect to its decisions, and it may call upon
the members of the United Nations to apply such measures. These may include
complete or partial interruption of economic relations and of rail, seal, air, postal,
telegraphic, radio and other means of communication, and the severance of
diplomatic relations:
AND WHEREAS it is desirable that provision should be made to enable
New Zealand to fulfil its obligations under the said article:
1 Short title
This is the United Nations Act 1946.
2 Power to make regulations to enable effect to be given to article 41
(1) If, under article 41 of the Charter of the United Nations the Security
Council of the United Nations calls upon the Government of New Zealand to
apply any measures to give effect to any decision of that Council, the Cabinet of
Niue may make all regulations as appear to it to be necessary or expedient for
enabling those measures to be effectively applied.
(2) No regulation made under this Act shall be deemed to be invalid
because it deals with any matter already provided for by any Act, or because of
any repugnancy to any Act.
1730 Niue Laws 2005 Vol 1
3 Liability for breach of regulations
Every person who commits, or attempts to commit, or does any act with
intent to commit, or counsels, procures, aids, abets, or incites any other person to
commit, or conspires with any other person (whether in Niue or elsewhere) to
commit any offence against any regulations made under this Act shall be liable on
summary conviction, in the case of an individual, to imprisonment for a term not
exceeding 12 months or to a fine not exceeding 2 penalty units or, in the case of a
company or other corporation, to a fine not exceeding 20 penalty units.
4-5 [Spent]
1731
VILLAGE COUNCILS ACT 1967
1967/41 – 1 May1967
|
PART 1 | |
|
PRELIMINARY | |
|
1 |
Short title |
|
2 |
Interpretation |
|
PART 2 | |
|
ADMINISTRATION | |
|
3 |
Administration of Act |
|
4 |
Advisers |
|
5 |
Powers of inspection |
|
6 |
Appeals |
|
7 |
Annual reports |
|
PART 3 | |
|
ESTABLISHMENT OF COUNCILS | |
|
8 |
Establishment and constitution of Village |
|
Councils | |
|
9 |
Councils to be bodies corporate |
|
10 |
Power to vary the constitution of councils |
|
PART 4 | |
|
ENROLMENT, ELECTIONS | |
|
11 |
Qualifications of electors |
|
12 |
Electoral rolls |
|
13 |
General provisions |
|
14 |
Qualifications for membership |
|
15 |
Elections |
|
16 |
Tenure of office |
|
17 |
Vacation of office |
|
18 |
Removal from office |
|
19 |
Casual vacancies |
|
PART 5 | |
|
MEETINGS | |
|
20 |
Chairmen, Deputy Chairmen |
|
21 |
Standing Orders |
|
22 |
Meetings of councils |
|
23 |
Meetings of councils |
|
24 |
Quorum and voting at meetings |
|
25 |
Minutes |
|
26 |
Councillors not to vote on certain matters |
|
PART 6 | |
|
POWERS, DUTIES, OF COUNCILS | |
|
27 |
General functions of Councils |
|
28 |
Agency functions for Government |
1732 Niue Laws 2006 Vol 3
|
58 |
Application of fines |
60 |
Public purposes | |
|
61 |
Regulations | |||
|
PART 11 | ||||
|
MISCELLANEOUS PROVISIONS |
SCHEDULE | |||
|
58 |
Judicial notice |
To provide for the establishment of village councils
1 Short title
PART 1
PRELIMINARY
This is the Village Councils Act 1967.
2 Interpretation
In this Act –
“adviser”, in relation to a Council, means an adviser appointed under
section 4 for that Council;
“auditor”, in relation to a Council, means the Council auditor appointed
under section 48 for that Council;
“Community Development Officer” means the Community Development
Officer appointed by the Niue Public Service Commission and holding
that office in the Niue Public Service;
“constituent notice”, in relation to a Council means the notice or notices
published under Part 3;
“Council” means a Village Council established by or under this Act;
“Council area”, in relation to a Council, means the area in and for which
the Council is established;
“Council Clerk” in relation to a Council, means the Council Clerk appointed
for that Council;
“Council Officer”, in relation to a Council, means any official, other than
the Council Clerk, employed by the Council;
“election” means an election of a Councillor or Councillors;
“financial year” means the period of 12 months commencing on 1 April in
a year and ending 31 March next following;
“Liquidator”, in relation to a Council, means the Liquidator of the Council
appointed under section 52;
“Manager”, in relation to a Council, means the Manager appointed for the
Council under section 50;
“Secretary” means Secretary to the Government.
3 Administration of Act
PART 2
ADMINISTRATION
(1) The Community Development Officer shall be charged with the administration of this Act.
(2) The Community Development Officer may, by writing under his hand, delegate to any other officer of the public service all or any of his powers or functions under this Act (except this power of delegation).
(3) The Community Development Officer or any officer to whom any power or functions have been delegated under subsection (2) shall not be eligible to hold any other office under this Act in relation to a Council.
Village Councils Act 1967
1733
4 Advisers
(1) The Community Development Officer, with the concurrence of Cabinet
may by notice published in the Gazette appoint an officer of the public service to
set as adviser to a Council and define the particular duties and responsibilities of
each adviser.
(2) An adviser shall advise and assist the Council in accordance with the
duties and responsibilities prescribed by the Community Development Officer.
(3) An adviser is entitled to attend meetings of the Council and to take
part in debate, but is not entitled to vote and shall not be counted towards a
quorum.
5 Powers of inspection
The Community Development Officer, or any officer authorised by him
may at any time –
(a) Inspect the books, accounts or records kept or held by the Council;
and
(b) Enter on and inspect any land, building, premises, or machinery or
thing owned or controlled by the Council or in which the Council
has an interest.
6 Appeals
(1) A person (including a Council) aggrieved by a decision of the secretary
under section 18 may appeal to a Judge of the Court, whose decision shall be
final.
(2) A person (including a Council) aggrieved by a decision of the Community Development Officer under this Act (other than under section 18) may appeal to Cabinet whose decision shall be final.
7 Annual reports
(1) The Community Development Officer shall present to Cabinet on or
before 30 April in every year, for presentation to the Assembly, a report reviewing
the operation of this Act and of the Village Council system, and drawing attention
to any measures which are, in his opinion, desirable for achieving the purposes of
this Act and for improving the operation of that system.
(2) Each Council shall, on or before 10 April in every year, present to the
Community Development Officer, for presentation to Cabinet, a report reviewing
the operations of the Council during the 12 months ending on 31 March then last
past.
PART 3
ESTABLISHMENT OF COUNCILS
8 Establishment and Constitution of Village Councils
Cabinet may –
(a) By notice published in the Gazette, establish a Council in and for
the village described in the notice, and
(b) Either in the notice establishing a Council or by a subsequent notice,
make provisions for the manner in which the Council is to be
constituted, for the boundaries of the Council area and for the
manner of election to the Council.
1734 Niue Laws 2006 Vol 3
9 Councils to be bodies corporate
A Council is a body corporate by the name under which it is established
with perpetual succession and a common seal, and, subject to this Act, has power
to acquire, hold, dispose of, mortgage or pledge property, to enter into contracts,
to borrow money, to invest funds, to institute and defend actions, suits and other
legal proceedings, and to do all other things necessary for the purposes of its
functions and duties.
10 Power to vary the constitution of Councils
After consultation with the Council concerned, Cabinet may, by notice
published in the Gazette –
(a) Vary the boundaries of a Council area in accordance with any change
made in the boundaries of a constituency under the Niue Assembly
Act 1966;
(b) Change the name of a Council; or
(c) Vary the constitution of a Council.
PART 4
ENROLMENT, ELECTIONS
11 Qualifications of electors
The qualifications and disqualifications of electors under this Act shall be
as provided under section 12 of the Niue Assembly Act 1966.
12 Electoral rolls
(1) The electoral rolls to be used for elections to Village Councils under
this Act shall be the same rolls as those required by section 13 of the Niue Assembly
Act 1966.
(2) The provisions as to the compulsory registration of electors under
section 14 of the Niue Assembly Act 1966 shall apply in like manner to the elections
for members of Village Councils under this Act.
13 General provisions
All other provisions as to electors and electoral rolls shall be as provided in
Part 3 of the Niue Assembly Act 1966.
14 Qualifications for membership
(1) Subject to subsection (2), a person who is entitled to be enrolled under
section 11 and is enrolled as an elector for his constituency, is qualified to nominate
a candidate for the Council in that constituency and to be a Councillor.
(2) A person is not qualified to nominate a candidate for a Council or to be
a Councillor if –
(a) He is an officer or employee of a Council;
(b) He is an undischarged bankrupt.
15 Elections
(1) All Village Councillors shall be elected by secret ballot, except as is
provided in section 19.
(2) Elections for individual Councils shall be held on such dates as are
specified by Cabinet by notice in the Gazette.
(3) Subject to this Act, the method of and the procedure to be followed at
an election shall be to all intents and purposes the same as is prescribed in the
Niue Assembly Act 1966 and in the conduct and supervision of any election under
Village Councils Act 1967
1735
this section the Chief Electoral Officer shall have due regard to the relevant provisions of that Act.
(4) In this section, the “Chief Electoral Officer” means the Chief Electoral
Officer appointed under section 3 of the Niue Assembly Act 1966.
16 Tenure of office
Subject to this Act and to anything to the contrary in the constituent notice,
the tenure of office of Councillors shall be 3 calendar years from and including the
day on which the first election is completed and, thereafter, 3 calendar years from
and including the day on which the previous election was completed.
17 Vacation of office
(1) A Councillor who –
(a) Resigns his seat by notice in writing to the Community
Development Officer;
(b) Is absent, without leave of the Council for 3 consecutive meetings
of the Council,
shall be deemed to have vacated his seat.
(2) The resignation of a Councillor takes effect on the date on which the
notice is received by the Community Development Officer.
18 Removal from office
(1) Notwithstanding anything contained in this Act, the Community
Development Officer shall, after due inquiry and after consultation, in such manner
as he thinks proper, with the Council, report the circumstances to the Secretary,
where he is satisfied that the Councillor has abused his powers or is incapable of
exercising them justly or is, for any other reason, not a fit and proper person to
continue to be a Councillor.
(2) The Secretary may suspend or remove from office any Councillor so
reported and suspension or removal from office shall take effect upon being notified
to the Council.
(3) The Secretary shall not remove a councillor from office under this section
unless the Councillor has been given reasonable opportunity of answering the
allegations made against him.
19 Casual vacancies
(1) Where a casual vacancy occurs, whether by reason of death, resignation
or otherwise, in an office of Councillor –
(a) If the vacancy occurs more than 6 months before the date upon
which the tenure of office of the former Councillor expires under
section 16, the vacancy shall be filled under section 15;
(b) In another case, the Community Development Officer may appoint
a person who is qualified to be a Councillor to hold the vacant office.
(2) A Councillor elected or appointed under this section shall hold office
for the balance of the tenure of office of the former Councillor.
PART 5
MEETINGS
20 Chairmen, Deputy Chairmen
(1) There shall be a Chairman and a Deputy Chairman of each Council
who shall be elected, as determined by the Council, by vote of the Councillors
from amongst their own number and may, in like manner, be removed from office.
1736 Niue Laws 2006 Vol 3
(2) The person for the time being holding office as a member of the Assembly representing the constituency in which a Council has been established shall, in the event that he is not returned as a member in the Council election, be ex officio a member of that Council.
21 Standing Orders
Subject to this Act, a Council shall adopt Standing Orders which have the
prior approval of the Secretary covering –
(a) The calling, regulation, and conduct of the meetings of the Council;
(b) The custody of the common seal of the Council; and
(c) Such other matters as are necessary or convenient for the purposes
of this Act.
22 Meetings of Councils
(1) A Council shall meet not less frequently than once every month for the
transaction of general business, at such time and place as is determined by the
Council or, in the case of the first meeting of a Council after a Council election, by
the Community Development Officer.
(2) At any time after the first meeting following a general election the
Council Clerk shall call a special meeting if so requested by the Chairman or upon
the request of any 2 other members.
(3) Subject to the subsection (4), a meeting of a Council shall be open to the
public, unless the Council for any special reason otherwise resolves at the meeting.
(4) The Chairman of a meeting of a Council may –
(a) Exclude or require to withdraw from the meeting a person who, in
his opinion, is behaving in a disorderly manner; and
(b) Call upon any constable or a Council officer to eject any such person
refusing to withdraw from the meeting or any other person refusing
to withdraw in accordance with a resolution under subsection (3).
23 Chairman of meetings of Councils
(1) Subject to subsection (2), the Chairman, or in his absence the Deputy
Chairman, shall preside at all meetings of a Council.
(2) In the absence of the Chairman and the Deputy Chairman, the
Councillors present at a meeting of a Council shall elect one of their number to
preside for the purpose of that meeting.
24 Quorum and voting at meetings
(1) One half of the total membership of the Council, or 3 members,
whichever is the greater number, shall constitute a quorum for the transaction of
business at a meeting of a Council.
(2) Subject to subsection (3), all acts of a Council and all questions and
matters coming before a Council for decision shall be done and decided by a
majority of the Councillors present at the meeting and entitled to vote on it.
(3) The person presiding at a meeting of the Council shall have a
deliberative and, in the event of an equality of votes, a casting vote.
25 Minutes
Minutes of the proceedings of all meetings of a Council, including the names
of all Councillors present at any such meetings, shall be drawn up and entered in
a book to be kept for the purpose, and shall be signed at the next ensuing meeting
of the Council by the person presiding at that meeting.
Village Councils Act 1967
1737
26 Councillors not to vote on certain matters
(1) A Councillor who is a party to, or has a direct or indirect interest in, a
contract made by or on behalf of the Council under which goods or services are to
be supplied to the Council shall not take part in discussion on a matter, or vote on
a question, in the Council where the matter or question relates directly or indirectly
to the subject-matter of that contract.
(2) All questions concerning the application of subsection (1) shall be
decided by the Council and a contravention of that subsection does not affect the
validity of anything done by the Council.
PART 6
POWERS AND DUTIES OF COUNCILS
27 General functions of Councils
(1) In addition to any other powers, functions and duties conferred or
imposed on it by this Act and subject to any other law in force in Niue, a Council
may perform the functions specified in the Schedule.
(2) Cabinet may direct a Council to perform a function specified in the
Schedule, and it is the duty of the Council to comply with any such direction.
(3) Subject to this Act and to any other law in force in Niue, a Council may,
for the purposes of the exercise and performance of its powers, functions and
duties –
(a) Organise, finance, engage in or assist any business or enterprise; (b) Take such action as it deems desirable for the improvement of
standards of housing and of agricultural, pastoral, forestry,
horticultural or other methods and the economic or social
betterment of the Council area or of persons in it, including –
(i) the acquisition, by purchase, lease, or otherwise (but not
including compulsory acquisitions) of land and buildings;
(ii) the development or improvement of land;
(iii) the construction of buildings;
(iv) cooperation with the Government or other recognised authority
or body in the provision of credit facilities; and
(v) the acquisition or disposal of land or buildings;
(c) Carry out any works for the benefit of the Council area or of persons
there;
(d) Provide, or cooperate with the Government or other body in
providing, any public or social service;
(e) Do all such other matters and things as seem to it necessary or
desirable for carrying out and performing its other powers,
functions, duties and responsibilities, and any other matters and
things ancillary or incidental thereto.
(4) The exercise by a Council of a power conferred by subsection (4) shall
not be deemed to be invalid or unlawful merely because –
(a) It takes place outside the Council area or is related to matters outside
the Council area; or
(b) It is for the benefit of only some of the persons in the Council area
or is for the benefit of any such persons jointly with other persons;
if the consent of the Community Development Officer is obtained.
1738 Niue Laws 2006 Vol 3
28 Agency functions for Government
Subject to the approval of Cabinet, a Council may –
(a) Act as an agent of the Government, another Council or any other
public body or authority for the collection or payment of moneys
on such terms and conditions as to the payment of commission or
otherwise as are agreed on; and
(b) Perform and do such other acts, matters and things on behalf of the
Government, another Council or any other public body or authority
as are agreed, on such terms and conditions as are agreed on.
29 General power to make bylaws
Subject to this Act, Council may make bylaws, not inconsistent with this
Act, regulations, or any other law for the time being in force in Niue, for the purpose
of the exercise and performance of its powers, functions and duties.
30 Notice of bylaw
(1) A Council shall not, except with the consent of Cabinet, make a bylaw
unless reasonable notice of the intention to make the bylaw has first been given to
the Community Development Officer.
(2) Notice under subsection (1) shall be given in such manner as the
Community Development Officer directs.
(3) Failure to comply with this section does not invalidate a bylaw.
31 Assent to bylaws
No bylaw made under section 21 shall become effective until it has been
assented to in writing by Cabinet.
32 Model bylaws
Subject to this Act, the Community Development Officer may publish in
the Gazette model bylaws, which may be adopted with or without modification
by a Council.
33 Power to levy taxes
(1) Subject to subsections (2)-(4), a Council may, with the approval of
Cabinet, make bylaws imposing personal taxes, whether at flat rates or on
graduated scales (other than a tax based on income) on persons or classes of persons
resident within the Council area.
(2) Cabinet may, in relation to a Council, fix a maximum or maxima for
any tax or taxes imposed under subsection (1), subject to such conditions as Cabinet
thinks proper.
(3) Notwithstanding anything in this Act or in any other law in force in
Niue, a bylaw made under subsection (1) may provide for a reduction in the amount
of any tax payable if it is paid within a period limited by the bylaw, being a period
shorter than that otherwise provided for paying that tax.
(4) For the purposes of this section, a person shall be deemed to be a resident
of a Council area if he has his usual place of abode within that area, notwithstanding
his occasional absence from it or his occasional absence on leave from his
occupation or employment.
Village Councils Act 1967
1739
34 Review of taxes
(1) (a) There shall be a Tax Review Committee for each Council which
shall consist of the Community Development Officer together with
2 members of the Council, who shall be elected from among their
number;
(b) The elected members shall not be persons engaged in the collection
of taxes.
(2) On application from a taxpayer within 3 months of the tax becoming
payable a Tax Review Committee may grant an exemption from taxes on the
grounds of hardship or lack of sufficient means, or may on any ground reduce the
amount of tax payable by a person to such amount as to it seems proper.
(3) A person aggrieved by a decision of a Tax Review Committee under
subsection (2) may appeal to a Judge or Commissioner of the Court, who may
confirm, annul or vary the decision appealed against, and whose decision shall be
final.
(4) In any investigation and determination under this section by a Tax Review Committee, or in the hearing of an appeal under subsection (3), as the case may be, it shall not be necessary to observe strict legal procedure or to apply technical rules of evidence, but such relevant evidence as is available, including hearsay evidence, shall be admitted and considered.
35 Fees for services
A Council may, with the approval of the Community Development Officer,
by bylaw or otherwise, impose or charge fees for services supplied or rendered,
or to be supplied or rendered, by or on behalf of the Council.
36 Exemptions
A Council may, by bylaw, exempt in whole or in part, from the payment of
any tax or fee imposed under this Part any person the income of whom is exempt
from tax under the Income Tax Act 1961.
37 Recovery of taxes
Taxes or fees due to a Council under this Part may be recovered by the
Council as a debt.
38 Deposit accounts
PART 7
FINANCE
(1) Treasury shall open and maintain deposit accounts in the name of each Council established under this Act, and Councils shall pay into these accounts – (a) All moneys received from the Government for the purposes of this
Act;
(b) All moneys appropriated by Act for the purpose of carrying out or
giving effect to this Act;
(c) Taxes and fees, imposed or charged by the Council; and
(d) All other moneys received by the Council in or for the performance
or exercise of its functions, duties, or powers.
(2) A Council shall, out of the moneys standing to the credit of the account
referred to in subsection (1) pay –
(a) All money payable by the Council in repayment of advances under
this Act, and as interest, if any, on those advances;
(b) The costs, charges and expenses incurred by the Council in the
performance of its functions under this Act;
1740 Niue Laws 2006 Vol 3
(c) The allowances, if any, of the Councillors;
(d) The remuneration of the Council Clerk and Officers and employees
of the Council; and
(e) Any other payment which the Council is authorised or required to
make by or under this Act or any other law in force in Niue.
39 Discretionary grants from public revenue
In addition to any other money which may be paid or advanced to or on
behalf of a Council, Cabinet may grant to a Council, upon such terms as it thinks
fit, any money appropriated by Act for the purpose.
40 Councils may accept offers by Cabinet to advance money
A Council may accept an offer by Cabinet to advance money for the
purposes of the Council on such terms as are agreed between the Council and
Cabinet.
41 Repayment of advances
A Council shall repay, in accordance with the terms under which the
advance is made, such portion of an advance as is repayable under these terms.
42 Borrowing
(1) A Council may, with the approval of the Community Development
Officer, borrow by means of overdraft or otherwise for the purposes of the Council
any sum not exceeding one half of the recurrent revenues of the Council during
the previous financial year as certified by the Auditor.
(2) For the purpose of the first financial year of the operation of a Council,
the limit fixed by the subsection (1) shall be deemed to be such limit as is fixed by
the Community Development Officer.
43 Estimates
(1) A Council shall, not later than 1 March each year, submit to the
Community Development Officer estimates of its receipts and expenditure during
the financial year next following, and may submit supplementary or revised
estimates.
(2) Where the Community Development Officer is satisfied that the
proposals contained in any estimates, supplementary estimates or revised estimates
are likely to be capable of being met from the finances available or likely to become
available for the purpose, he shall certify the estimates accordingly to the Council.
(3) Where the Community Development Officer is not satisfied as to the
matters referred to in subsection (2), he may, by notice to the Council, refuse
certification, in whole or in part, and shall immediately advise the Council of his
reasons for it.
(4) Where the Community Development Officer has withheld certification,
in whole or in part, of any estimates, the Council shall not incur expenditure,
collect revenue or commence or carry on any work or project in respect of the
whole or the part of the estimates of which certification has been withheld, without
the consent of the Community Development Officer.
Village Councils Act 1967
1741
44 Reserve Funds
(1) Subject to this section, a Council shall, unless otherwise authorised by
the Community Development Officer, set aside during each financial year not
less than one tenth of its recurrent revenue for that year as a reserve.
(2) A Council shall build up and maintain at all times a Reserve Fund equal
to 50 per centum of its average annual revenue over the 5 financial years
immediately preceding.
(3) When a Reserve Fund is built up under subsection (2), the provisions
of subsection (1) apply only to the extent necessary to maintain that Reserve Fund
at the level prescribed by subsection (2).
45 Power to invest
A Council may invest any moneys in the Reserve Fund –
(a) In any securities of, or guaranteed by, the Government of New
Zealand or the Government of Niue;
(b) On deposit in a bank;
(c) On any bonds issued under the Niue Development Bonds Act 1994;
or
(d) In any other manner approved by Cabinet.
46 Accounts
(1) A Council shall keep proper accounts and records under such
instructions as are issued by the Community Development Officer under
subsection (2) and shall do all things necessary to ensure that all payments out of
its funds are correctly made and properly authorised and that adequate control is
maintained over the assets of the Council and the incurring of liabilities by the
Council.
(2) The Community Development Officer may with the concurrence of
the Financial Secretary issue written instructions (Financial Memoranda), not
inconsistent with this Act and conforming with the principal provisions of the
Public Revenues Act 1959 and instructions issued under it for the better control
and management of the finance of Councils.
(3) Financial Memoranda shall be observed and obeyed by Councils,
Council Clerks and other Council officers.
47 Writing off irrecoverable amounts
A Council may, in such manner and subject to such conditions as may be
prescribed by instructions issued under section 46, write off –
(a) Losses or deficiencies from its funds;
(b) Irrecoverable amounts of revenue;
(c) Irrecoverable debts or overpayments; and
(d) The value of lost, deficient, condemned, unserviceable or obsolete
stores.
48 Audit
(1) A Council shall appoint a suitable person, approved by the Community
Development Officer, to be the Council Auditor.
(2) One person may be appointed to be the Council Auditor for more than
one Council.
(3) An Auditor shall or as required by the instruction issued under section
46, inspect and audit accounts and records of financial transactions of the Council
and shall forthwith draw the attention of the Council and the Community
1742 Niue Laws 2006 Vol 3
Development Officer to any irregularity revealed by the inspection and audit which, in the opinion of the Auditor, is of sufficient importance to justify his so doing.
(4) The Auditor shall, at least once in each year, report to the Council and the Community Development Officer the results of the inspection and audit carried out under subsection (3).
(5) The Council, a Councillor, Council Clerk, Council Officer or employee of the Council, shall, at all times, give an Auditor every possible assistance, including full and free access to all accounts, records, documents and papers, to enable him to carry out the inspection and audit.
(6) Every Council, Councillor, Council Clerk, Council Officer or employee who refuses to comply with any requirement of an Auditor under subsection (5), or who wilfully obstructs, hinders or resists an Auditor in the exercise of his powers and duties, commits an offence and shall be liable on conviction to a fine not exceeding 1 penalty unit.
49 Suspension
PART 8
SUSPENSION AND DISSOLUTION
(1) Where the business of a Council is being so negligently, inefficiently or badly conducted as not to be for the welfare of the Council area and of persons in it or a Council is not properly carrying out the duties imposed on it by or under this Act or any other law in force in Niue, the Secretary may after receiving a report and recommendation accordingly from the Community Development Officer, by order in writing to the Chairman of the Council, suspend all or any of the powers and functions of that Council.
(2) A suspension under this section shall immediately be reported by the
Secretary to the Cabinet and, unless previously confirmed, varied or revoked by
Cabinet, shall lapse one month after the date of the suspension.
(3) A suspension under this section operates to deprive the Council of the
suspended powers or functions during the period of suspension, but does not
affect any right, privilege, obligation or liability acquired, accrued or incurred
under or in respect of the suspended power or function.
50 Appointment of Manager
(1) Where powers or functions of a Council are suspended under section
49, the Secretary, on the recommendation of the Community Development Officer,
may appoint a person to be Manager for the Council.
(2) Subject to any directions given by Cabinet, a Manager has and may
exercise on behalf of the Council such of the suspended powers and functions as
are specified by the Community Development Officer in writing to the Manager.
(3) Notwithstanding subsection (2), but subject to any directions given by
Cabinet, the Community Development Officer may exercise on behalf of the
Council during a suspension under section 49, all or any of the suspended powers
or functions.
51 Period of suspension
Subject to section 49(2) a suspension operates for such period as is fixed by
Cabinet for the purpose, or until the Council is abolished under section 52.
Village Councils Act 1967
1743
52 Abolition of Councils
(1) During a period of suspension under section 49 the Community
Development Officer may, with the concurrence of the Secretary, recommend to
Cabinet that a Council be abolished.
(2) Upon receipt of a recommendation under subsection (1) or of his own
motion, Cabinet may by notice published in the Gazette, abolish a Council.
(3) In a notice under subsection (2) or by a subsequent notice, Cabinet shall
appoint a person to be the Liquidator of the Council.
(4) A Liquidator shall proceed to wind up the affairs of the Council in
accordance with such directions as are given by the Community Development
Officer, and shall dispose of its assets in such manner as Cabinet determines.
(5) Upon the conclusion of the winding up and disposal of the affairs and
assets of a Council under subsection (4), the Liquidator shall make a report on it.
(6) Subject to this Act, upon the publication of a notice under subsection
(2) or on such later date as is specified in the notice, the powers and functions of
the Council cease and determine.
53 Council Clerks
PART 9
COUNCIL STAFF
(1) For each Council there may be appointed by the Niue Public Service Commission a Council Clerk and such other Council officers as may be necessary for the efficient performance of the functions and duties of the Council.
(2) Any person so appointed may hold office in addition to or in conjunction
with any office in the Niue Public Service.
54 Employees
In addition to officers appointed under section 53, a Council may employ
persons to render temporary or casual service to the Council on such terms and
conditions as are determined by the Council with the approval of the Community
Development Officer.
PART 10
OFFENCES
55 Failure to comply with rules
Any person who, without reasonable excuse (the proof of which excuse
shall be on him), contravenes or fails to comply with a bylaw made under this Act
and which is applicable to him, commits an offence and shall be liable on conviction
to a fine not exceeding 0.5 penalty units.
56 Failure to pay taxes
(1) Any person liable to pay taxes under this Act who, without reasonable
cause, refuses or fails, after demand, whether oral or in writing, to pay the taxes at
or within the time prescribed in the bylaw imposing the tax, commits an offence
and shall be liable on conviction to a fine not exceeding 0.5 penalty units or to
imprisonment for one month.
(2) In a prosecution under this section –
(a) Proof that a person has resided in the Council area or was enrolled
as an elector for the Council at any time during the period to which
the taxes relate is evidence that he resided in the Council area for
any period necessary for him to incur liability to pay the taxes; and
1744 Niue Laws 2006 Vol 3
(b) The burden of proof –
(i) of reasonable cause within the meaning of subsection (1);
(ii) that the defendant has been exempted from the taxes payable
by him or the amount has been reduced under section 34;
(iii) of payment of the amount of the tax for which the defendant is
liable,
lies on the defendant.
(3) A conviction for an offence against subsection (1) does not relieve the
offender of the liability to pay the taxes.
57 Obstruction
(1) Any person who –
(a) Obstructs or interferes with the lawful exercise by a Council or the
Community Development Officer or an officer authorised by him,
or a Manager or Liquidator, of any of its or his powers or functions
under this Act or any other law in force in Niue; or
(b) Without lawful authority (the proof of which authority shall be on
him) purports to exercise any powers of a Council, or of a Councillor
or Council Officer, or of a Manager, Liquidator or Auditor,
commits an offence and shall be liable on conviction to a fine not exceeding 1
penalty unit.
(2) Proceedings for an offence under subsection (1)(b) shall not be instituted
without the consent of the Community Development Officer.
58 Application of fines
All fines imposed for offences against this Act shall be paid to the Council
against which the offence was committed and shall form part of the Council
revenues.
59 Judicial notice
PART 11
MISCELLANEOUS PROVISIONS
(1) All Courts and persons acting judicially shall take judicial notice of – (a) All bylaws made by a Council; and
(b) Any act, matter or thing of which publication in the Gazette is
directed by or under this Act,
when so published.
(2) The common seals of all Councils shall be judicially and officially
noticed.
60 Public purposes
The purposes of Village Councils and the purposes of a Council shall be
deemed to be a public purpose within the meaning of any law in force in Niue.
61 Regulations
Cabinet may make regulations not inconsistent with this Act, prescribing
all matters which by this Act are required or permitted to be prescribed, or which
are necessary or convenient to be prescribed, for carrying out or giving effect to
this Act and in particular for providing for –
(a) Fees or allowances for Councillors;
(b) The regulation of the imposition and collection of taxes and fees by
Councils;
Village Councils Act 1967
1745
(c) The accounts and records to be kept by Councils; and
(d) The imposition of penalties not exceeding a fine of 0.5 penalty units
or imprisonment for one month, or both, for breaches of the
regulations.
––––––––––––––––––––
SCHEDULE Section 27 (1) and (2)
General Functions of Councils
The undertaking, provision, construction, maintenance, management and regulation of –
1 Bush roads (excluding public roads).
2 Road cleaning (on behalf of land owners in the Council area, under section 82 of the Transport Act 1965).
3 Public parks, gardens, recreation areas, scenic resorts and lookouts, and other public places, reserves and land vested in the Council or placed under its control either permanently or temporarily, including –
(a) Bathing places; (b) Shelter sheds; (c) Public toilets.
4 Health, sanitation, prevention and suppression of infectious and other diseases, abatement of nuisances, disposal of the dead, including –
(a) Aid post, clinics, maternity and child welfare clinics; (b) Control of cemeteries;
(c) Public latrines and wash places;
(d) Prevention of pollution of water sources;
(e) Control of noxious animals, vermin and rodents;
(f) Village cleanliness.
5 Building and use and occupation of buildings, places of public amusement or public resort, stalls and stands on roads.
6 Markets and commercial enterprises including –
(a) Operation of Council markets and fixing maximum prices of commodities
sold in such markets;
(b) Supply of planting material.
7 Village planning, including –
(a) Schemes for any defined part or all of the Council area;
(b) Payment of compensation;
(c) Zoning schemes.
8 Housing schemes (acting in cooperation with the Assembly Housing Scheme).
1746 Niue Laws 2006 Vol 3
9 Public halls, public libraries and community centres, including –
(a) Adult education schemes (in cooperation with the Education Department
and Community Development Office);
(b) Equipment for recreational purposes;
(c) Grant sums of money to associations for the promotion of handicrafts,
recreation and sports, tourism, or the welfare of the people;
(d) The foundation, maintenance, operation and encouragement of social,
recreational, cultural and community centres and clubs for sporting, social
or other lawful purposes.
10 Supply of water, light and power, water conservation and storm water drainage, including –
(a) Entering into agreements with Government or with other Councils for such purposes;
(b) Establishment and maintenance of forest plantations and natural forest reserves;
(c) Regulating the use of public water supplies; (d) Establishing lighting in public places.
11 Pounds and impounding of animals.
12 Establishment and maintenance of fish ponds.
13 Agricultural, pastoral, horticultural and forestry industries and the economic use of Niuean customary land, including requiring the owners of land to cultivate it to such extent and with such crops as will ensure a sufficient supply of food for their support and the support of those dependent upon them.
14 Omnibus and transport services.
15 Construction and maintenance of sea approaches.
16 Protection of fish resources under Domestic Fishing Act 1995, and flora and fauna.
17 Prescribe the duties and functions of any person employed by the Council in connection with any function of the Council.
1747
VISITING FORCES ACT 1939
1939/36 (NZ) – 30 August 1940
|
1 |
Short title |
5 |
Deserters from overseas forces |
|
2 |
Interpretation |
6 |
[Repealed] |
|
3 |
Discipline and internal administration of |
7 |
Application of Act |
|
visiting forces |
8 |
[Repealed] | |
|
4 |
Relations of visiting forces to the civil |
9 |
Limitation of penalties |
|
power and civilians |
10 |
Regulations |
To make provision with respect to forces of Her Majesty from other parts of the Commonwealth or from a colony when visiting New Zealand, and with respect to the exercise of command and discipline when forces of Her Majesty from different parts of the Commonwealth are serving together, and with respect to the attachment of members of one such force to another such force, and with respect to deserters from such forces
1 Short title
This is the Visiting Forces Act 1939.
2 Interpretation
In this Act –
“court” includes a service court of inquiry and any officer of a visiting
force who is empowered by the law of that part of the Commonwealth
to which the force belongs to review the proceedings of a service court,
or to investigate charges, or himself to dispose of charges; and
“sentence” shall be construed accordingly;
“forces” includes reserve and auxiliary forces;
“home forces” means the naval, military and air forces of Her Majesty raised
in New Zealand; and “home force” includes any body, contingent, or
detachment of any of the home forces, wherever serving;
“internal administration”, in relation to any visiting force, includes the
administration of the property of a deceased member of the force;
“member”, in relation to a visiting force, includes any person who is by
law of that part of the Commonwealth to which the force belongs subject
to the naval, military, or air force law of the part of the Commonwealth
and who, being a member of another force, is attached to the visiting
force or, being a civilian employed in connection with the visiting force,
entered into the engagement outside New Zealand;
“part of the Commonwealth” means any country which Cabinet by
regulation declares to be part of the Commonwealth for the purposes
of this Act;
“visiting force” means any body, contingent, or detachment of the naval,
military, or air forces of any part of the Commonwealth which is, with
the consent of the Niue Government, lawfully present in Niue.
1748 Niue Laws 2006 Vol 3
3 Discipline and internal administration of visiting forces
(1) When a visiting force is present in Niue it shall be lawful for the naval,
military, and air force courts and authorities (the “service courts” and the “service
authorities”) of that part of the Commonwealth to which the force belongs to
exercise within Niue in relation to members of such force in matters concerning
discipline and in matters concerning the internal administration of such force all
such powers as are conferred upon them by the law of that part of the
Commonwealth.
(2) The members of any such service court as aforesaid exercising
jurisdiction by virtue of this Act, and witnesses appearing before any such court,
shall enjoy the like immunities and privileges as are enjoyed by a service court
exercising jurisdiction by virtue of any enactment in force in New Zealand and by
witnesses appearing before such a court.
(3) (a) Where any sentence has, whether within or without Niue, been
passed upon a member of a visiting force by a service court of that
part of the Commonwealth to which the force belongs, then for the
purposes of any legal proceedings within Niue the court shall be
deemed to have been properly constituted, and its proceedings shall
be deemed to have been regularly conducted, and the sentence shall
be deemed to be within the jurisdiction of the court and under the
law of that part of the Commonwealth and, if executed according
to its tenor, shall be deemed to have been lawfully executed, and
any member of a visiting force who is detained in custody in
pursuance of any such sentence, or pending the determination by
such a service court as aforesaid of a charge brought against him,
shall for the purposes of any such proceedings as aforesaid be
deemed to be in lawful custody.
(b) For the purposes of any such proceedings as aforesaid a certificate
under the hand of the officer commanding a visiting force that a
member of that force is being detained for either of the causes
aforesaid shall be conclusive evidence of the cause of his detention,
but not of his being such a member, and a certificate under the hand
of such an officer that the persons specified in the certificate sat as
a service court of that part of the Commonwealth to which the force
belongs shall be conclusive evidence of that fact.
(4) No proceedings in respect of the pay, terms of service, or discharge of a
member of a visiting force shall be entertained by any court of Niue.
(5) For the purpose of enabling such service courts and such service
authorities to exercise more effectively the powers conferred upon them by this
section, Cabinet, if so requested by the officer commanding a visiting force or by
the Government of that part of the Commonwealth to which the force belongs,
may by general or special orders to any home force, direct the members of it to
arrest members of the visiting force alleged to have been guilty of offences against
the law of that part of the Commonwealth, and to hand over any person so arrested
to the appropriate authorities of the visiting force.
4 Relations of visiting forces to the civil power and civilians
(1) (a) Cabinet may by regulation authorise any Government department,
Minister of the Crown, or other person in Niue to perform, at the
request of such authority or officer as may be specified in the order,
but subject to such limitations as may be so specified, any function
in relation to a visiting force and members of it which that
Visiting Forces Act 1939
1749
Department, Minister, or person performs or could perform in relation to a home force of like nature to the visiting force, or in relation to members of such a force, and for the purpose of the exercise of any such function any power exercisable by virtue of any enactment by the Department, Minister, or person in relation to a home force or members of it shall be exercisable in relation to the visiting forces and members of it.
(b) Nothing in this subsection shall authorise any interference in matters relating to discipline or to the internal administration of the force.
(2) [Repealed by 2004/270]
(3) If Cabinet by regulation so provides, members of a visiting force if
sentenced by a service court of that part of the Commonwealth to which the force
belongs to penal servitude, imprisonment, or detention may, under the authority
of Cabinet, given at the request of the officer commanding the visiting force, be
temporarily detained in custody in prisons or detention barracks in Niue; and, if
so sentenced to imprisonment, may, under the like authority, be imprisoned during
the whole or any part of the term of their sentences in prisons in Niue, and Cabinet
may by regulation make provision with respect to any of the following matters –
(a) The reception of such persons from, and their return to, the service
authorities concerned;
(b) Their treatment while in such custody or while so imprisoned;
(c) The circumstances under which they are to be released; and
(d) The manner in which they are to be dealt with in the event of their
unsoundness of mind while in such custody, or while so imprisoned.
(4) Any costs incurred in the maintenance and return of or otherwise in
connection with any person dealt with under subsection (3) shall be defrayed in
such manner as may with the approval of the Minister of Finance be agreed between
the Minister of Defence and the Government of that part of the Commonwealth
which is concerned.
(5) Subject to this subsection and subsection (6), any enactment in force in
Niue which –
(a) Exempts, or provides for the exemption of, any vessel, vehicle,
aircraft, machine, or apparatus of or employed for the purposes of
the home forces or any of them from the operation of any enactment;
or
(b) In virtue of a connection with the home forces, or any of them,
confers a privilege or immunity on any person; or
(c) In virtue of such a connection excepts any property, trade, or
business, in whole or in part, from the operation of any enactment,
or from any tax, rate, imposition, toll, or charge; or
(d) Imposes upon any person or undertaking obligations in relation to
the home forces, or any of them, or any member or service court; or
(e) Penalises misconduct by any person in relation to the home forces,
or any of them, or any member or service court –
shall, with any necessary modifications, apply in relation to a visiting force as it
would apply in relation to a home force of a like nature of the visiting force.
(6) Regulations made under this section may apply either generally or in
relation to visiting forces from any particular part of the Commonwealth, or in
relation to any particular visiting force, or in relation to any particular place.
1750 Niue Laws 2006 Vol 3
5 Deserters from overseas forces
(1) The forces to which this section applies are such of the naval, military,
and air forces of any part of the Commonwealth as Cabinet may by regulation
direct.
(2) Subject to this section, the law in force in Niue relating to the apprehension of deserters and absentees without leave from a home force shall within Niue apply in relation to a deserter or an absentee without leave from any force to which this section applies (including any member of a reserve or auxiliary force who, having failed to obey a notice calling upon him to appear at any place for service, is by the law of that part of the Commonwealth to which the force belongs, liable to the same punishment as a deserter, or to the same punishment as an absentee without leave), as they apply in relation to a deserter or absentee without leave from a home force.
(3) (a) No person who is alleged to be a deserter from any such force as aforesaid shall be apprehended or dealt with under this section except in compliance with a specific request from the Government of that part of the Commonwealth to which the force belongs, and a person so dealt with shall be handed over to the authorities of that part of the Commonwealth at such place in Niue as may be agreed.
(b) A person who is alleged to be a deserter or absentee without leave
from a visiting force may also be apprehended and dealt with under
this section in compliance with a request, whether specific or
general, from the officer commanding that force, and shall, if that
force is still present in Niue, be handed over to the officer
commanding that force at the place where the force is stationed.
(4) For the purposes of any proceedings under this section –
(a) A document purporting to be a certificate of Cabinet or of a
prescribed officer that a request has been made under subsection
(3) shall be admissible without proof as evidence of such a request;
(b) A document purporting to be a certificate under the hand of the
officer commanding a unit or detachment of any force to which
this section applies that a named and described person was at the
date of the certificate a deserter, or absentee without leave, from
that force shall be admissible without proof as evidence of the facts
so certified.
6 [Repealed by 2004/270]
7 Application of Act
Subject to such exemptions, adaptations, and modifications as Cabinet may
by regulation direct –
(a) This Act shall apply in relation to any naval, military, or air forces
raised in any territory for whose international relations the
Government of any part of the Commonwealth is responsible, as if
those forces were part of the naval, military, or air forces of that
part of the Commonwealth;
(b) This Act shall apply in relation to any naval, military, or air forces
raised in the Cook Islands, Niue, or Tokelau as if those forces were part of the
home forces.
8 [Repealed by 2004/270]
Visiting Forces Act 1939
1751
9 Limitation of penalties
Nothing in this Act shall be construed to authorise any service court of any
part of the Commonwealth to impose on a member of a visiting force in respect of
any offence any penalty exceeding the penalty to which a member of the home
forces would under the law of Niue be liable for a similar offence.
10 Regulations
Cabinet may make such regulations, not inconsistent with this Act, as may
be deemed necessary or convenient for the purpose of giving full effect to this
Act.
1752 Niue Laws 2006 Vol 3
1753
WATER RESOURCES ACT 1996
1996/209 – 20 August 1996
PART 1 PART 5
PRELIMINARY USE OF BORES
1 Short title 17 Extraction licences
2 Interpretation 18 Waste disposal licences
3 Act to bind the Crown 19 Change in use of bore
4 Purpose of legislation 20 Amendment of licences
5 Cabinet may resolve disputes 21 Cancellation of licences
6 Cabinet may make dispensations
7 Vesting of ground water in the Crown PART 6
WATER SUPPLY
PART 2 22 Power to supply water
GENERAL POWERS OF MANAGER 23 Power to install meters
8 Responsibilities of Manager 24 Power to disconnect supplies
9 Power to enter and use lands 25 Power to suspend supplies
10 Power for entering land and premises 26 Powers of the Health Officer
11 Power to impose restrictions
12 Power to make water conservation orders PART 7
13 Power to charge fees REGULATIONS
27 General Regulations
PART 3
GROUND WATER INVESTIGATION PROGRAMME PART 8
14 Manager may conduct programme MISCELLANEOUS
15 Power to require samples 28 Personal liability of officers
29 Offences
PART 4 30 Penalties
CONSTRUCTION OF BORES 31 Compensation
16 Power to construct bores 32 [Repealed]
To make provision for the investigation, use, control, protection and management of water
1 Short title
PART 1
PRELIMINARY
This is the Water Resources Act 1996.
2 Interpretation
(1) In this Act and any Regulation made under it –
“bore” means any bore, well, gallery, cave or drive or any artificially
constructed or improved underground cavity;
“Crown land” means Crown land as defined in section 2 of the Niue
Amendment Act (No 2) 1968;
1754 Niue Laws 2006 Vol 3
“environment” includes all aspects of the surroundings of man, whether affecting him as an individual or in his social groupings and shall include biological, social and aesthetic factors of those surroundings;
“groundwater” means any water occurring in or obtained from any geological structure or formation permeated or capable of being permeated usually or occasionally with water and includes any matter dissolved or suspended in such water;
“Health Officer” means Public Health Officer or a person authorised in writing on his behalf;
“Manager” means the Director of Works or the Water Manager (Water
Resources) is appointed;
“meter” means any device approved by the Manager for measuring the
amount of water extracted or used or the rate at which it is extracted or
used and includes such fittings and ancillary equipment as may be
necessary or desirable to so measure;
“pollution” means any direct or indirect alteration of the physical, thermal,
chemical, biological or radioactive properties of any water so as to
render such water less fit for any beneficial purpose for which it is, or
may reasonably be used, or to cause a condition which is hazardous or
potentially hazardous to public health, safety or welfare, or to animals,
birds, wildlife, fish or aquatic life, or to plants;
“premises” includes any structure, building or part of building or land
with or without buildings;
“private” in the expressions “private water works” and “private sewerage
works” shall include any works owned or operated by any person, or
Village Council other than a Public Authority, and or the Manager;
“private water works” shall include roofing, spouting, downpipes, rain
water holding tank, piping and taps of it. The pipes and all fittings
which extend from the main public water supply pipe to the premises
of it;
“private sewerage works” shall include the soak hole disposal trench,
disposal mound (to cover other possible effluent disposal methods)
septic tank, vents, drain pipes, toilet pan, sink, shower, wash and hand
basins;
“public water supply” means any waterworks constructed or operated by
the Manager for the purpose of supplying water under section 22;
“public authority” includes any Government department or an officer of
the Niue Public Service and any statutory body, statutory corporation
or officer of it;
“sewerage” means any matter, or any water contaminated by any matter
in solution or suspension or carried along, as is derived from the use of
water in connection with the life or vocations of mankind;
“sewerage works” includes all sewers, pipes, conduits, tanks, receptacles
or other appliances and any works incidental there to be used or
intended to be used for the reception, discharge, retention, removal,
treatment or disposal of sewage;
“Village Council” means any Village Council established under the Village
Councils Act;
“water” includes all groundwater, cave waters, seawater and rainwater;
“water works” includes any bores, catchments, reservoirs, tanks, cisterns,
conduits, mains, pipes, meters, valves, hydrants, pumps, engines and
all other structures or appliances used or constructed for the storage,
treatment, conveyance, supply, measurement or regulation of water.
Water Resources Act 1996
1755
(2) Subject to subsection (1), words, phrases, and expressions used in this Act and defined in the Constitution or the Land Act 1969 shall, unless a contrary intention appears, have in this Act and Regulations made under it, the meaning so defined.
under this Act shall have regard to the need to make proper provision for –
(a) Adequate supplies of suitable water for domestic use, for the
watering of animals, for irrigation and agricultural purposes, for
rural, commercial, industrial use, and for recreation;
(b) Adequate facilities for drainage, the safe disposal of sewage, effluent
and water-borne wastes and the control and prevention of pollution
and disease;
(c) The protection of natural or artificial sources of water from excessive
or improper use, from the intrusion of saline water and from
pollution and other damage;
(d) Procedures to ensure that the possible consequences of particular
development proposals on the environment are properly
investigated and considered before such proposals are approved
and are properly monitored thereafter;
(e) Procedures to facilitate and ensure the coordination of all detailed
planning for the investigation, use, control, protection, management
and administration of water resources; and
(f) Procedures to facilitate and ensure the coordinated execution of
approved plans and projects by public authorities.
5 Cabinet may resolve disputes
Subject to this Act, the Cabinet, on the application of the Manager or the
Health Officer shall have power to resolve any conflict in the powers of, or any
disputes between, any public authorities relating to any matter concerning the
investigation, use, control, protection, management or administration of water or
any powers conferred by this Act or its Regulations.
6 Cabinet may make dispensations
The Cabinet may, on the joint recommendation of the Manager and the
Health Officer, exempt any bored, proposed bore or class of bores from any of the
requirements of this Act or of any Regulations made hereunder as long as it does
not compromise any health or environmental requirements.
1756 Niue Laws 2006 Vol 3
7 Vesting of ground water in the Crown
The right to the use, flow, pipe, store, sale and control to all ground water is
vested in the Crown.
PART 2
GENERAL POWERS OF MANAGER
8 Responsibilities of Manager
(1) The Manager shall be responsible to the Minister of Works and subject
to this Act, be responsible for –
(a) The investigation and exploration of groundwater resources and
the collection of data and dissemination of information relating to
it;
(b) The management, conservation, protection and replenishment of
water resources;
(c) The construction, alteration, repair and maintenance of bores;
(d) The licensing, inspection, oversight and control of the extraction
and use of water from any bore;
(e) The temporary or permanent shutting down or sealing of any bore;
(f) The design, construction, operation, repair, maintenance,
management, control and administration of all public water supplies
and of all water works comprising such supplies;
(g) The management, protection and treatment by chemicals or by other
means of all water contained in such water works, provided that
the Manager shall not so treat any such water without the prior
consent of the Health Officer as provided for in this Act;
(h) The distribution and sale of water from any public water supply;
(i) The collection of any fees, charges, or rates which may be imposed
or levied in connection with the construction, alteration, repair or
maintenance of any bore, any licence for the extraction of water or
disposal of wastes, or any public water supply;
(j) The carrying out of this Act and any Regulations made under it.
(2) The Manager shall have all powers necessarily incidental to it.
9 Power to enter and use lands
(1) The Manager, or any person duly authorised by him and, in the case of
paragraphs (b), (d), (e), (f) and (g), the Health Officer, or any person duly authorised
by him may enter upon and use any lands at any time for the purpose of –
(a) Carrying out any surveys, including geological and groundwater
surveys, necessary for the exploration or investigation of
groundwater resources or the collection of data relating to it;
(b) Carrying out any site investigations; including the carrying out
pumping tests or any other activity whatsoever as is necessary for
the exploration or investigation of groundwater resources;
(c) Carrying out or erecting on it such works or buildings, or depositing
on it such material, or erecting such pumps or other equipment for
the purpose of exploration or investigation of groundwater
resources, or for the purpose of constructing, altering, repairing or
maintaining any bore;
(d) Inspecting or monitoring the use of any bore and the taking of
samples of water extracted there from in it;
(e) The shutting down or sealing or opening of any bore;
Water Resources Act 1996
1757
(f) Assessing the need to make any order under section 12 or whether such order is being or has been carried out, or for carrying out any work authorised by that section;
(g) Erecting rain gauges or other instruments for the purposes of collecting hydrometeorological data;
(h) Carrying out any survey necessary for the design, construction or
maintenance of water works and public water supplies;
(i) Laying any main, connection, or pipes through, across, or under
any land or road;
(j) Inspecting, repairing, maintaining, renewing, altering, removing
or testing any main, connection or pipes;
(k) Erecting on it such temporary works or buildings, or depositing on
it such materials as may be necessary for the laying, inspecting,
repairing, maintaining, renewing, altering, removing or testing of
any main, connection pipes or any other water works;
(l) Taking, in any emergency situation, such action as he deems
necessary for the proper conservation and protection of
groundwater resources:
Provided that no entry shall be made under this section to any land unless verbal
or written notice has first been given to the occupier of it.
(2) Where the land is expressly required for a bore site the Manager must
consult with the Leviki of the land and seek written agreement for the proposed
site for the water bore.
10 Power for entering land and premises
(1) The Manager, or any person duly authorised by him and, in the case of
subsection (2), the Health Officer, or any person duly authorised by him may enter upon any land and or premises –
(a) Into or upon which any service is being or has been laid for the
supply of water from any water works associated with a public
water supply;
(i) To inspect any service and ascertain whether there is any
wastage, leakage, obstruction, alteration, interference, or
damage to any service or meter in it and to do anything in
connection therewith;
(ii) To regulate or repair any service or meter;
(iii) To ascertain the consumption of any water supplied;
(iv) To disconnect the service to any premises;
(v) To suspend, stop or turn off the supply of water to any premises
either wholly or in part in order to carry out any of the powers
of the Manager under this Act;
(b) To cut and remove on either side of any works, whether existing or
proposed, for a distance indicated in the Regulations, any
undergrowth, trees or part of any tree including their roots which
may interfere or may be likely to interfere with any works;
(c) Should any tree growing on any land cause or likely to cause
damage to any works, the Manager may cause notice to be given to
the owner of such land to remove the said tree or part of it and
should the owner fail to comply with the terms of such notice within
the time specified therein (being not less than 7 clear days after the
time of the service of that notice), the Manager may enter upon that
land and remove the tree or any part of it but so that no unnecessary
damage is done or incurred by it.
1758 Niue Laws 2006 Vol 3
(d) If the rights conferred by paragraph (b) shall have been exercised in respect of any land no compensation shall be paid in respect of any tree or part of it on such land and cut under the powers conferred by this section;
(e) For the purposes of inspecting any private water works or private sewerage works or for assessing the need to make an order under section 12 or whether such order is being or has been carried out or for carrying out any work authorised by that section.
(2) Except in the case of drought, cyclone, earthquake, or any other
emergency, the powers conferred by this section may only be exercised during
daylight hours and on informing the occupier if possible.
11 Power to impose restrictions
The Manager may, in times of actual or anticipated shortage of water, by
notification over television and or radio and or in any newspaper circulating on
Niue, shall monitor –
(a) The amount of water which may be extracted or maximum rate at
which water may be extracted from any bore, water reservoir, or
main pipe line;
(b) The amount of waste which may be disposed of, or the maximum
rate at which waste may be disposed of, and any person, public
authority or Village Council to whom a licence has been issued
under this Act shall thereupon observe the restrictions contained
in any such notice and the terms of any such notice shall be deemed
to be a condition of any licence in force under this Act for the period
specified in the notice or until such notice is revoked.
12 Power to make water conservation orders
(1) Notwithstanding any other provision of this Act or any other legislation,
where the Manager or the Public Health Inspector is satisfied that any act or
omission by any person or public authority or Village Council may result, directly
or indirectly, in the pollution or deterioration, inequitable distribution, loss, wastage
or undue depletion of any water, the Manager may by order direct any person,
public authority or Village Council, or the owner or occupier of any land, to do
any one or more of the following –
(a) To close and shut off the supply of water from any bore, public
water supply or private water works;
(b) To restrict or limit the amount of water taken from any bore, public
water supply or private water works;
(c) To discontinue the use of any bore or any public water supply,
private water works or private sewerage works or any water works
associated with it or connected to it;
(d) To treat any sewage or waste in a manner specified in the order;
(e) To prevent the amount of waste entering any ground water, sea or
cave in the manner specified in the order;
(f) To use the water extracted from any bore for such purposes as may
be specified in the order;
(g) To treat any water extracted from any bore or contained in any public
water supply or private water supply in such manner as may be
specified in the order;
(h) To do, cease or to refrain from doing any act or thing on any land or
to do such act or thing which could or may be likely to harm Niue’s
water lens, storage or supply, which shall be specified in the order;
Water Resources Act 1996
1759
(i) To erect such structures or to carry out such works, including water works or sewerage works, or to repair, maintain, alter or remove such structures or works as may be specified in the order.
(2) (a) In any case where the Public Health Inspector is satisfied that any act or omission by any person or Public Authority may result in, directly or indirectly, the likely pollution or deterioration of Niue’s water lens, any water supply or in any threat to public health, or our environment he shall exercise any of the powers granted by the previous subsection;
(b) The Health Officer shall not issue an order with respect to any bore or public water supply under the control of the Manager without prior consultation with the Manager.
(3) If any person, public authority, Village Council or the owner or occupier of any land to whom an order under this section is addressed shall fail to comply with any direction contained in such order within such time as is specified in the order, the Manager or, in the case of an order issued under subsection (2), either the Manager or the Health Officer, may cause the provisions of the order to be carried out and may recover any expenses incurred from the person, public authority, Village Council or owner or occupier of land to whom the order was addressed.
13 Power to charge fees
(1) Subject to any regulations made hereunder, the Manager with approval
of Cabinet may impose fees or charges for the doing of any act, the considering of
any application or the issuing of any licence or approval under this Act and may
impose and collect fees, charges and rates –
(a) On any person, public authority or Village Council who extracts
any water or disposes of any waste under a licence granted under
this Act;
(b) On any person, public authority or Village Council served by the
construction, alteration, repair, maintenance or operation of any bore
or any public water supply;
(c) On any person, public authority or Village Council to whom the
Manager supplies or sells any water under this Act.
(2) Subject to subsection (1) the Public Health Inspector may impose fees
or charges for the inspection of any bore or any public or private water supply or
sewerage works and for the sampling and testing of any water or waste.
PART 3
GROUNDWATER INVESTIGATION PROGRAMME
14 Manager may conduct programme
(1) The Manager may cause a programme of investigation into
groundwater resources to be prepared.
(2) The programme may provide for the collection, collation and analysis
of data concerning in particular –
(a) The location, pressure, composition and movement of groundwater;
(b) The properties of groundwater or of the rock or coral containing
groundwater or through which such groundwater percolates;
(c) Any other matters in connection with the availability of
groundwater or its suitability for use or its protection from
depletion, wastage or pollution or its replenishment.
(3) The Manager may do anything necessary or expedient for or in
connection with the carrying out of the programme.
1760 Niue Laws 2006 Vol 3
15 Power to require samples
The Manager may require any person who is the holder of any licence issued
under the Mining Act 1977 to supply the Manager with such samples from the
core or water of any bore constructed under such licence and any details concerning
such bore and the operation of it as the Manager may require.
PART 4
CONSTRUCTION OF BORES
16 Power to construct bores
(1) No person other than the Manager or public authority shall construct,
alter, repair or maintain any bore for the purpose of extracting water or cause any
such bore to be constructed, altered, repaired or maintained.
(2) The Manager may, with the consent of the Health Officer as to the
proposed location of it, construct any bore for the extraction of water for the
purposes of Part 6.
(3) Any person, public authority or Village Council may apply to the
Manager to have a proposed bore constructed or any bore altered in the manner
provided for in Regulations made hereunder.
(4) The Manager, with the consent of the Health Officer, may grant such
application subject to such terms and conditions as he thinks fit or as are provided
for in Regulations made hereunder or may refuse to grant such application.
(5) Where any person holding a licence under Part 4 of the Mining Act
1977 has constructed or proposes to construct a bore which has encountered or
may encounter any groundwater, the Manager may require such precautions to
be taken or work to be done in relation to such bore as he deems necessary for the
protection of such groundwater and may exercise the powers conferred by section
12 in relation to any such bore.
17 Extraction licences
PART 5
USE OF BORES
bore.
(1) Only the Manager may extract and use supply and sell water from any
(2) No use of water or natural depositories of water by any person or public
authority holding a licence under Part 4 of the Mining Act 1977 shall be deemed lawful.
(3) No person or public authority shall cause or permit any water to be extracted or used from any bore except as authorised by the Manager and under the conditions of an extraction licence issued under this section.
18 Waste disposal licences
(1) Any person or public authority wishing to dispose of any matter
underground shall apply to the Manager for a licence in the manner provided for
in regulations under this Act.
(2) The Manager shall with the consent of the Health Officer grant such
application subject to such conditions as the Manager and the Health Officer shall
jointly think fit or as are provided for in regulations made hereunder, or may
refuse to grant such application.
(3) The Manager shall not approve an application in respect of any disposal
which in his opinion or in the opinion of the Health Officer would or maybe or is
likely to cause the pollution of any groundwater or be detrimental to any bore.
(4) No person or public authority shall cause or permit any matter to be
disposed of underground by means of a water bore.
Water Resources Act 1996
1761
19 Change in use of bore
(1) Any person or public authority wishing to change the purpose for which
any bore is used shall apply to the Manager for approval in the manner provided
for in Regulations under this Act.
(2) The Manager shall, with the consent of the Health Officer grant such
application subject to such conditions as the Manager and the Health Officer shall
jointly think fit or as are provided for in Regulations made hereunder, or may
refuse to grant such applications.
(3) As a condition of granting any such application the Manager may
require any applicant to apply for and obtain a licence under section 17 or section
18.
(4) No person or public authority or any person who has constructed a bore under a licence granted under Part 4 of the Mining Act 1977 shall change the purpose for which any bore is used unless approval has been obtained under this section.
20 Amendment of licences
(1) The Manager may amend any licence granted under sections 17 and 18
and may add to, vary or contradict the conditions of any licence, notwithstanding
that such conditions are prescribed by Regulations under this Act.
(2) The Manager shall not amend any licence or add to, vary or contradict
the conditions of any licence granted under section 18, 19 or which would harm
Niue’s water lens, without the prior consent of the Public Health Inspector.
21 Cancellation of licences
The Manager may cancel or suspend any licence for breach of any of the
conditions contained in it or breach of any of the provisions of this Act or of any
regulations made hereunder.
22 Power to supply water
PART 6
WATER SUPPLY
(1) The Manager may, subject to this Act, extract and collect from any bore constructed for the purpose of supplying water, and may store, supply and sell any such water to any person, Public Authority or any Village Council.
(2) The Manager shall not be obliged to supply or sell water to any person, public authority or any Village Council and may refuse the supply of it to any person, public authority or Village Council if any rates or charges have not been paid.
(3) The Manager and staff are not liable for failure of the Public Water Supply, and no claim can be made against the Water and Waste Utility, Manager or his staff.
23 Power to install meters
The Manager may install meters for the purpose of measuring any water
supplied or sold under this Act, but the Manager shall not be obliged to install
such meters, and where water is supplied without any meter being installed, the
measurement of water supplied shall be calculated by such means as the Manager
may provide.
1762 Niue Laws 2006 Vol 3
24 Power to disconnect supplies
The Manager may disconnect the supply of water to any person, public
authority or Village Council where –
(a) Any deposit or advance payment required by the Manager has not
been paid;
(b) Where the payment of any fee, charge or rate made or levied under
this Act is in arrears;
(c) Where, in the opinion of the Manager any person consuming water
from that supply allows or has allowed any water from that supply
to run to waste;
(d) Where any person, public authority or Village Council is in breach
of the conditions of any agreement under which water is supplied,
or has failed to comply with this Act or Regulations made hereunder;
(e) Where any person, public authority or Village Council is in breach
of any order issued under section 12 or of the provisions of this Act
or any regulations made under it.
25 Power to suspend supplies
The Manager may restrict, suspend or stop the supply of water under section
22 to any public or private water works –
(a) Whenever, in the opinion of the Manager, there is an actual or
anticipated shortage of water available;
(b) Whenever it may be expedient or necessary for the purposes of
extending, altering, testing, treating, maintaining or repairing the
water works or for the purposes of the connection of services or for
the fighting of fires;
(c) Whenever any water works are damaged or waters are polluted or
wasted;
(d) Whenever there is any breakdown in the water works.
26 Powers of the Health Officer
Where is of the opinion that any water contained in any bore, public water
supply is likely or may become polluted or there is likely or may be a threat to
public health, the Health Officer, after consultation with the Manager and, where
appropriate, with any person, public authority or Village Council –
(a) May require the Manager to restrict, suspend or stop the supply of
water to any person, public authority or Village Council;
(b) May treat or require the Manager to treat any water contained in
any water works associated with such supply;
and the Manager shall forthwith comply with such requirement.
27 General Regulations
PART 7
REGULATIONS
The Cabinet may make regulations for the purpose of carrying out this Act and, without in any way limiting the generality of the foregoing, may make regulations;
(a) Prescribing the mode, form, strength and material of construction of and the depth, dimensions, arrangement and positioning of bores and ancillary works;
(b) Prescribing standards for the construction, renewal, alteration, repair and maintenance of any bore;
Water Resources Act 1996
1763
(c) Regulating the operation of bores and ancillary works so as to prevent the waste, misuse or pollution of any groundwater;
(d) Prohibiting the doing of acts or things which may result in the pollution of any water;
(e) Prescribing standards and procedures for the sampling and setting aside of any material, water or other fluid extracted or taken in any way whatsoever from any bore;
(f) Fixing, in times of actual or anticipated shortage of water, the amount of water which may be taken or maximum rate at which water may be taken from any bore or types of bore.
(g) Fixing the times at which water may be taken from any bore or types of bore;
(h) Temporarily or permanently prohibiting the taking or use of water from any bore;
(i) Prescribing forms for use under this Act;
(j) Concerning the issue, renewal, transfer, cancellation, revocation,
suspension and variation of licences and approvals and the making,
amendment or alteration of any order under this Act;
(k) Prescribing conditions or classes of conditions which may be
attached to licence or approvals issued under this Act or to the sale
of any water from any public water supply;
(l) Specifying standards of quality and means to be adopted for the
purification or protection of any water and the protection of any
land adjacent to any bore;
(m) Specifying, appointing, and empowering responsible authorities
to exercise any powers or functions under this Act or any regulations
made hereunder;
(n) Prescribing fees, charges and rates to be made under this Act;
(o) Prescribing the procedure to be adopted in the application and
collection of such fees, charges and rates;
(p) Regulating and controlling the planning, construction, operation,
repair or maintenance of any public water supply;
(q) Prescribing the nature and strength of materials used, the size,
position and arrangement and method of connection of, and the
workmanship and standard of any fittings to be used in, any public
or private water supply, water works or sewerage works and also
the type, nature and method of connection of any apparatus for the
storage or use of water on any premises for any purposes
whatsoever, including the method of disposal and treatment of any
waste therefrom;
(r) Examining, licencing and authorising any person to construct,
renew, alter, repair maintain any public or private water supply,
water works, or sewerage works connected to it;
(s) Prescribing the situations in which and methods by which
restrictions on the use of water from any water works may be
imposed;
(t) Regulating the acquisitions, disposition, custody, inspection, testing,
maintenance and protection from alteration or damage of any meter
or other measuring device;
(u) Specifying acts or omissions contrary to the purposes of this Act
which shall be regarded as offences against this Act and, subject to
section 30, fixing penalties in relation to it;
1764 Niue Laws 2006 Vol 3
(v) Any matter concerning the investigation, use, control, protection, management or administration of water resources;
(w) Any matter necessary or convenient to the carrying out or giving effect to, to forming of a company or corporatisation and other matters of this Act.
PART 8
MISCELLANEOUS
28 Personal liability of officers
No person shall be personally liable for any act done by him in good faith
in the exercise of any duties, powers, or authorities imposed or conferred on him
by this Act.
29 Offences
(1) Any person who assaults, resists, obstructs, hinders or delays or who
entices or encourages any other person to assault, resist, hinder obstruct or delay
any person in the performance of his duties under this Act shall be guilty of an
offence.
(2) Any person who unlawfully damages, destroys or interferes with, or
attempts to damage, destroy or interfere with any bore, water storage tank, meter
or water works whatsoever shall be guilty of an offence.
(3) (a) Any person who causes or permits either directly or indirectly any
water to be polluted or causes or permits the doing of an act likely
to lead to the pollution of any water shall be guilty of an offence.
(b) Any person or public authority holding a licence under section 18
may discharge wastes under that licence.
(4) Any person who does not meet the requirements for water catchment,
graves, rubbish dumps, disposal of waste waters, swimming pool filling and
emptying, as stated in Water Resources Regulations, whatsoever shall be guilty of
an offence.
(5) Water is hereby declared to be a product capable of being stolen within
the meaning of section 188 of the Niue Act 1966 and any person who maliciously
or fraudulently abstracts, causes to be wasted or diverted, consumes, or uses any
such water shall be guilty of theft.
30 Penalties
(1) Subject to subsection (2) any person who contravenes or fails to comply
with this Act or of any Regulation made under it, or relating to the subject matter
of this Act shall be guilty of an offence and shall, where no specific penalty is
provided, on conviction be liable to a fine not exceeding 10 penalty units or to a
term of imprisonment; not exceeding 6 months or both such fine and imprisonment
and, in the case of a continuing offence, to an additional fine not exceeding 5
penalty units for every day or part of a day that the offence shall continue.
(2) Where no specific penalty is provided for any offence concerning the
pollution or any water or acts which may directly or indirectly cause pollution of
any water the maximum penalty shall be a fine not exceeding 500 penalty units or
a term of imprisonment of 2 years or both such fine and imprisonment, and in the
case of a continuing offence, an additional fine not exceeding 50 penalty units for
every day or part of a day that the offence shall continue.
Water Resources Act 1996
1765
31 Compensation
Whenever, for the purposes of Part 6, it becomes necessary to acquire or to
resume any land or interest under sections 11 or 14 of the Niue Amendment Act
(No 2) 1968, compensation under section 13 shall only be payable –
(a) In respect of land, that the storage tank, bore or equipment is erected
upon and the land surrounding such tank, bore and equipment as
long as the bore, storage tank and equipment is in use or likely to
be used;
(b) In respect of any damage occasioned and not made good in the
course of constructing, altering, repairing or maintaining any public
water works associated therewith; and not otherwise.
32 [Repealed]
1766 Niue Laws 2006 Vol 3
1767
WILDLIFE ACT 1972
1972/74 – 9 March 1972
|
1 |
Short title |
5 |
Powers of wildlife wardens |
|
2 |
Interpretation |
6 |
Forfeiture of property |
|
3 |
Powers of Cabinet |
7 |
Prohibition orders |
|
4 |
Protection of animals |
8 |
[Spent] |
To make provision for the protection in Niue of wild animals and wild birds
1 Short title
This is the Wildlife Act 1972.
2 Interpretation
In this Act –
“absolutely protected animal” means any animal of a species which is under
section 3 declared to be an absolutely protected species;
“animal” means any mammal which is a wild species or any bird which is
of a wild species, but does not include any mammal of a domesticated
species or any bird of a domesticated species although it may be existing
in a wild state;
“bag limit” means the maximum number of partly protected animals of
any one particular species which, during any one day outside any
protection period relating to that species, any one person may kill or
trap;
“carcass” means the whole or any part of the dead body of any animal;
“partly protected animal” means any animal of a species which is under
section 3 declared to be a partly protected species;
“protected animal” means
(i) any absolutely protected animal; or
(ii) during any protection period relating to it, any partly protected
animal;
“protection period” means any period of time in any year during which
under any notice issued under section 3, any partly protected animal is
a protected animal;
“vehicle” means any motor vehicle, any bicycle, any boat or any canoe,
and includes any wheeled trailer towed or capable of being towed
behind any motor vehicle;
“wildlife warden” means any constable.
1768 Niue Laws 2006 Vol 3
3 Powers of Cabinet
(1) (a) Cabinet may, by notice in the Gazette declare, for the purposes of
this Act, any species of animal to be an absolutely protected species
or a partly protected species.
(b) Any such notice may state that it is to have effect with reference
only to some part or parts of Niue specified in the notice.
(2) Cabinet shall, in any notice issued under subsection (1) declaring any
species of animal to be a partly protected species, specify the period or periods of
time in the year in which such species is a protected animal and shall, if it thinks
fit, also specify in such notice a bag limit relating to that species.
(3) Cabinet may, by notice in the Gazette, revoke, vary or amend any notice
issued under subsection (1) or (2).
4 Protection of animals
(1) No person shall, without the prior written permission of Cabinet –
(i) Kill, injure or trap, or attempt to kill, injure or trap any protected
animal; or
(ii) Destroy, damage or take, or attempt to destroy, damage or take
the egg of any bird which is a protected animal; or
(iii) Disturb or attempt to disturb the nest or nesting place of any
bird which is a protected animal; or
(iv) Disturb or attempt to disturb the lair or roosting place of any
protected animal.
(2) Any permission referred to in subsection (1) may be given either
unconditionally or subject to any conditions which, in his absolute discretion,
Cabinet may in writing deem fit to impose, and any such permission may be
revoked by Cabinet.
(3)(a) Any person who acts contrary to subsection (1) or who acts in breach
of any conditions imposed under subsection (2) by Cabinet, commits
an offence and, on conviction, shall be liable to a fine not exceeding
forty dollars or to imprisonment for a term not exceeding one week;
(b) No person shall be convicted of an offence under this subsection if
he proves to the satisfaction of the Court that the act constituting
the offence with which he is charged was, on his part, accidental
and unintended.
(4) Any person who in any one day kills or traps any number of partly
protected animals of a particular species in excess of the bag limit relating to such
species, commits an offence and, on conviction, shall be liable to a fine not exceeding
0.5 penalty units for each animal so killed or trapped by him in excess of such
limit, or to imprisonment for a term not exceeding one week.
(5) Any person who is, by a wildlife warden, found to have in his
possession, custody or control any animal or carcass shall be presumed, in the
absence of proof to the contrary, to have trapped or killed the animal concerned
during the period of one day immediately preceding the point of time at which he
is so found.
5 Powers of wildlife wardens
(1) Where any wildlife warden has reason to believe that any person has
committed an offence mentioned in section 4 he may, subject to subsection (2),
exercise all or any of the following powers –
(a) He may require that person immediately to give to him true and
full particulars of such person’s full names, occupation and place
Wildlife Act 1972 1769
of abode and, if such person fails to do so, or if the wildlife warden has reason to believe that all or any of such particulars are false, he may, without warrant, arrest such person;
(b) He may, without warrant, search any such person or any container or vehicle in the possession or control, or in the apparent possession or control, of such person;
(c) He may, without warrant, seize and take into his custody –
(i) Any animal or the carcass of any animal in the possession or
control, or in the apparent possession or control, of such person;
(ii) Any firearm, ammunition, trap, snare or other device in the
possession or control, or in the apparent possession or control,
of such person used or capable of being used for killing or
trapping any animal.
(2) A wildlife warden shall not, without the prior written permission of a
Judge of the Court or of a Commissioner, exercise in any private dwellinghouse
or in any private garden adjacent to any private dwellinghouse, any one or more
of the powers conferred upon a wildlife warden by subsection (1) (b) and (c).
(3) Any person who, when lawfully required so to do, fails immediately
to give to a wildlife warden all the particulars referred to in subsection (1) (a) or
who otherwise resists or obstructs a wildlife warden in the lawful exercise of any
one or more of the wildlife warden’s powers under that subsection commits an
offence and, on conviction, shall be liable to a fine not exceeding 0.5 penalty units
or to imprisonment for a term not exceeding 2 weeks.
6 Forfeiture of property
Where any person is convicted of an offence mentioned in section 4 (3) or
(4), the Court may order that any protected animal trapped by such person, or the
carcass of any protected animal killed by such person, or any egg taken by such
person in the course of committing the offence, or any firearm, trap, snare or other
device (other than a vehicle) owned by such person and used by such person for
the purposes of committing the offence, shall be absolutely forfeited to the Crown;
and, upon any such forfeiture, the animal carcass, egg or other thing so forfeited
shall become the absolute property of the Crown and shall be disposed of in such
manner as Cabinet may specify.
7 Prohibition orders
(1) Where any person is convicted of an offence contrary to this Act, the
Court may make an order prohibiting such person from killing, attempting to kill,
trapping and attempting to trap any protected animal for any period not exceeding
2 years from and including the date of the conviction.
(2) The Court may cancel any such order or reduce the period mentioned
in the order.
(3) Any person, in respect of whom any such order has been made and
who, during the subsistence of the order, acts contrary to the order, commits an
offence and, on conviction, shall be liable to a fine not exceeding 1 penalty unit or
to imprisonment for a term not exceeding 3 weeks.
8 [Spent]
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1771
WILLS ACT 1837
1 Vict Cap XXVI – 3 July 1837
|
1 |
Meaning |
20 |
Revocation of will |
|
2 |
[Spent] |
21 |
Alteration in a will |
|
3 |
All property may be disposed of by will |
22 |
Revival of will |
|
4 |
Devisees of customary and copyhold |
23 |
A devise not to be rendered inoperative by |
|
estates |
any subsequent conveyance or act | ||
|
5 |
Wills of customary freeholds |
24 |
A will to speak from the death of the |
|
6 |
Estates pur autre vie |
testator | |
|
7 |
Will of a person under age |
25 |
A residuary devise |
|
8 |
Will of a married woman |
26 |
A general devise |
|
9 |
Every will shall be in writing and signed |
27 |
A general gift |
|
by the testator in the presence of two |
28 |
A devise without any words of limitation | |
|
witnesses at one time |
29 |
The words “die without issue,” or “die | |
|
10 |
Appointments by will |
without leaving issue” shall be construed | |
|
11 |
Soldiers and mariners wills |
to mean die without issue living at the | |
|
12 |
Wills of seamen |
death | |
|
13 |
Publication not to be requisite |
30 |
No devise to trustees or executors, except |
|
14 |
Incompetency of attesting witness |
for a term or a presentation to a church, | |
|
15 |
Gifts to an attesting witness |
shall pass a chattel interest | |
|
16 |
Creditor attesting to be admitted a witness |
31 |
Trustees under an unlimited devise |
|
17 |
Executor to be admitted a witness |
32 |
Devises of estates tail |
|
18 |
Will revoked by marriage |
33 |
Gifts to children |
|
19 |
No will revoked by presumption |
34-36 – |
By this Act, it is enacted,
1 That the words and expressions hereinafter mentioned, which in their
ordinary signification have a more confined or a different meaning, shall in this
Act, except where the nature of the provision or the context of the Act shall exclude
such construction, be interpreted as follows; (that is to say,) the word “Will” shall
extend to a testament, and to a codicil, and to an appointment by will or by writing
in the nature of a will in exercise of a power, and also to a disposition by will and
testament or devise of the custody and tuition of any child, by virtue of an Act, 12
Car. 2. c. 24, intituled, ‘An Act for taking away the Court of Wards and Liveries,
and Tenures in capite and by Knights Service, and Purveyance, and for settling a
Revenue upon His Majesty in lieu thereof,’ or by virtue of an Act, 14 & 15 Car. 2
(I.), intituled, ‘An Act for taking away the Court of Wards and Liveries, and Tenures
in capite and by Knights Service,’ and to any other testamentary disposition; and
the words “Real Estate” shall extend to manors, advowsons, messuages, lands,
tithes, rents and hereditaments, whether freehold, customary freehold, tenant right,
customary or copyhold, or of any other tenure, and whether corporeal, incorporeal,
or personal, and to any undivided share thereof, and to any estate, right, or interest
(other than a chattel interest) therein; and the words “Personal Estates” shall extend
to leasehold estates and other chattels real, and also to monies, shares of
1772 Niue Laws 2006 Vol 3
government and other funds, securities for money (not being real estates), debts, choses in action, rights, credits, goods, and all other property whatsoever which by law devolves upon the executor or administrator, and to any share or interest therein; and every word importing the single number only shall extend and be applied to several persons or things as well as one person or thing; and every word importing the masculine gender only shall extend and be applied to a female as well as a male.
2 [Spent]
3 That it shall be lawful for every person to devise, bequeath, or dispose of, by his will executed in manner hereinafter required, all real estate and all personal estate which he shall be entitled to, either at law or in equity, at the time of his death, and which if not so devised, bequeathed, or disposed of would devolve upon the heir at law, or customary heir of him or, if he became entitled by descent, of his ancestor, or upon his executor or administrator; and that the power hereby given shall extend to all real estate of the nature of customary freehold or tenant right, or customary or copyhold, notwithstanding that the testator may not have surrendered the same to the use of his will, or notwithstanding that, being entitled as heir, devisee, or otherwise to be admitted thereto, he shall not have been admitted thereto, or notwithstanding that the same, in consequence of the want of a custom to devise or surrender to the use of a will or otherwise, could not at law have been disposed of by will if this Act had not been made, or notwithstanding that the same, in consequence of there being a custom that a will or a surrender to the use of a will should continue in force for a limited time only, or any other special custom, could not have been disposed of by will according to the power contained in this Act, if this Act had not been made; and also to estates pur autre vie, whether there shall or shall not be any special occupant thereof, and whether the same shall be freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether the same shall be a corporeal or an incorporeal hereditament; and also to all contingent, executory, or other future interests in any real or personal estate, whether the testator may or may not be ascertained as the person or one of the persons in whom the same respectively may become vested, and whether he may be entitled thereto under the instrument by which the same respectively were created or under any disposition thereof by deed or will; and also to all rights of entry for conditions broken and other rights of entry; and also to such of the same estates, interests, and rights respectively, and other real and personal estate, as the testator may be entitled to at the time of his death, notwithstanding that he may become entitled to the same subsequently to the execution of his will.
4 Provided always, That where any real estate of the nature of customary freehold or tenant right, or customary or copyhold, might, by the custom of the manor of which the same is holden, have been surrendered to the use of a will, and the testator shall not have surrendered the same to the use of his will, no person entitled or claiming to be entitled thereto by virtue of such will shall be entitled to be admitted, except upon payment of all such stamp duties, fees, and sums of money as would have been lawfully due and payable in respect of the surrendering of such real estate to the use of the will, or in respect of presenting, registering, or enrolling such surrender, if the same real estate had been surrendered to the use of the will of such testator: Provided also that where the testator was entitled to have been admitted to such real estate, and might, if he had been
Wills Act 1837 1773
admitted *hereto, have surrendered the same to the use of his will, and shall not have been admitted thereto, no person entitled to claiming to be entitled to such real estate in consequence of such will shall be entitled to be admitted to the same real estate by virtue thereof, except on payment of all such stamp duties, fees, fine, and sums of money as would have been lawfully due and payable in respect of the admittance of such testator to such real estate, and also of all such stamp duties, fees, and sums of money as would have been lawfully due and payable in respect of surrendering such real estate to the use of the will, or of presenting, registering, or enrolling such surrender, had the testator been duly admitted to such real estate, and afterwards surrendered the same to the use of his will; all which stamp duties, fees, fine, or sums of money due as aforesaid shall be paid in addition to the stamp duties, fees, fine, or sums of money due or payable on the admittance of such person, so entitled or claiming to be entitled to the same real estate as aforesaid.
5 That when any real estate of the nature of customary freehold or tenant right, or customary or copyhold, shall be disposed of by the will, the lord of the manor or reputed manor of which such real estate is holden, or his steward, or the deputy of such steward, shall cause the will by which such disposition shall be made, or so much thereof as shall contain the disposition of such real estate, to be entered on the court rolls of such manor or reputed manor; and when any trusts are declared by the will of such real estate, it shall not be necessary to enter the declaration of such trusts; but it shall be sufficient to state in the entry on the court rolls that such real estate is subject to the trusts declared by such will; and when any such real estate could not have been disposed of by will if this Act had not been made, the same fine, heriot, dues, duties, and services shall be paid and rendered by the devisee as would have been due from the customary heir in case of the descent of the same real estate, and the lord shall as against the devisee of such estate have the same remedy for recovering and enforcing such fine, heriot dues, duties, and services as he is now entitled to for recovering and enforcing the same from or against the customary heir in case of a descent.
6 That if no disposition by will shall be made of any estate pur autre vie of a freehold nature, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of special occupancy, as assets by descent, as in the case of freehold land in fee simple; and in case there shall be no special occupant of any estate pur autre vie, whether freehold or customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether a corporeal or incorporeal hereditament, it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant; and if the same shall come to the executor or administrator either by reason of a special occupancy or by virtue of this Act, it shall be assets in his hands, and shall go and be applied and distributed in the same manner as the personal estate of the testator or intestate.
7 That no will made by any person under twenty-one years shall be valid.
8 Provided also, That no will made by any married woman shall be valid, except such a will as might have been made by a married woman before the passing of this Act.
1774 Niue Laws 2006 Vol 3
9 That no will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned; (that is to say,) it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.
10 That no appointment made by will, in exercise of any power, shall be valid, unless the same be executed in manner hereinbefore required; and every will executed in manner hereinbefore required shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required that a will made in exercise of such power should be executed with some additional or other form of execution or solemnity.
11 Provided always, That any soldier being in actual military service, or any mariner or seamen being at sea, may dispose of his personal estate as he might have done before the making of this Act.
12 That this Act shall not prejudice or affect any of the provisions contained in an Act intituled, ‘An Act to amend and consolidate the Laws relating to the Pay of the Royal Navy,’ respecting the wills of petty officers and seamen in the Royal Navy, and non-commissioned officers of marines, and marines, so far as relates to their wages, pay, prize money, bounty money, and allowances, or other monies payable in respect of services in Her Majesty’s Navy.
13 That every will executed in manner hereinbefore required shall be valid without any other publication thereof.
14 That if any person who shall attest the execution of a will shall at the time of the execution thereof, or at any time afterwards, be incompetent to be admitted a witness to prove the execution thereof, such will shall not on that account be invalid.
15 That if any person who shall attest the execution of any will to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift or appointment, of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift, or appointment mentioned in such will.
16 That in case by any will any real or personal estate shall be charged with any debt or debts, and any creditor, or the wife or husband of any creditor, whose debt is so charged, shall attest the execution of such will, such creditor notwithstanding such charge shall be admitted a witness to prove the execution of such will, or to prove the validity or invalidity thereof.
Wills Act 1837 1775
17 That no person shall, on account of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of such will, or a witness to prove the validity or invalidity thereof.
18 That every will made by a man or woman shall be revoked by his or her marriage (except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not in default of such appointment pass to his or her heir, customary heir, executor, or administrator, or the person entitled as his or her next of kin, under the Statute of Distributions).
19 That no will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances.
20 That no will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid, or by another will or codicil executed in manner hereinbefore required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.
21 That no obliteration, interlineation or other alteration made in any will after the execution thereof shall be valid or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as is hereinbefore required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will.
22 That no will or codicil, or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner hereinbefore required, and shewing an intention to revive the same; and when any will or codicil which shall be partly revoked, and afterwards wholly revoked, shall be revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shewn.
23 That no conveyance or other act made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as aforesaid, shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death.
24 That every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.
1776 Niue Laws 2006 Vol 3
25 That, unless a contrary intention shall appear by the will, such real estate or interest therein as shall be comprised or intended to be comprised in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law or otherwise incapable of taking effect, shall be included in the residuary devise (if any) contained in such will.
26 That a devise of the land of the testator, or of the land of the testator in any place or in the occupation of any person mentioned in his will, or otherwise described in a general manner, and any other general devise which would describe a customary, copyhold, or leasehold estate if the testator had no freehold estate which could be described by it, shall be construed to include the customary, copyhold, and leasehold estates of the testator, or his customary, copyhold and leasehold estates, or any of them, to which such description shall extend, as the case may be, as well as freehold estates, unless a contrary intention shall appear by the will.
27 That a general devise of the real estate of the testator, or of the real estate of the testator in any place or in the occupation of any person mentioned in his will, or otherwise described in a general manner, shall be construed to include any real estate, or any real estate to which such description shall extend (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will; and in like manner a bequest of the personal estate of the testator, or any bequest of personal property described in a general manner, shall be construed to include any personal estate, or any personal estate to which such description shall extend (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will.
28 That where any real estate shall be devised to any person without any words of limitation, such devise shall be construed to pass the fee simple, or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention shall appear by the will.
29 That in any devise or bequest of real or personal estate the words “die without issue,” or “die without leaving issue,” or “have no issue,” or any other words which may import either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such person, and not an indefinite failure of his issue, unless a contrary intention shall appear by the will, by reason of such person having a prior estate tail, or of a preceding gift, being, without any implication arising from such words, a limitation of an estate tail to such person or issue, or otherwise: Provided, that this Act shall not extend to cases where such words as aforesaid import if no issue described in a preceding gift shall be born, or if there shall be no issue who shall live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue.
Wills Act 1837 1777
30 That where any real estate (other than or not being a presentation to a church) shall be devised to any trustee or executor, such devise shall be construed to pass the fee simple or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a definite term of years, absolute or determinable, or an estate of freehold, shall thereby be given to him expressly or by implication.
31 That where any real estate shall be devised to a trustee, without any express limitation of the estate to be taken by such trustee, and the beneficial interest in such real estate, or in the surplus rents and profits thereof, shall not be given to any person for life, or such beneficial interest shall be given to any person for life, but the purposes of the trust may continue beyond the life of such person, such devise shall be construed to vest in such trustee the fee simple, or other the whole legal estate which the testator had power to dispose of by will in such real estate, and not an estate determinable when the purposes of the trust shall be satisfied.
32 That where any person to whom any real estate shall be devised for an estate tail or an estate in quasi entail shall die in the lifetime of the testator leaving issue who would be inheritable under such entail, and any such issue shall be living at the time of the death of the testator, such devise shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.
33 That where any person being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person shall die in the lifetime of the testator leaving issue, and any such issue of such person shall be living at the time of death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.
34-36 –
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1779
WILLS ACT AMENDMENT ACT 1852
15 and 16 Vict ch 24 (UK) – 17 June 1852
For the amendment of the Wills Act 1837
1 Position of testator’s signature
Where by the Wills Act 1837 it is enacted , that no will shall be valid unless
it shall be signed at the foot or end of it by the testator, or by some other person in
his presence, and by his direction: Every will shall, so far only as regards the
position of the signature of the testator, or of the person signing for him as aforesaid,
be deemed to be valid within the said enactment, as explained by this Act, if the
signature shall be so placed at or after, or following, or under, or beside, or opposite
to the end of the will, that it shall be apparent on the face of the will that the
testator intended to give effect by such his signature to the writing signed as his
will; and no such will shall be affected by the circumstance that the signature shall
not follow or be immediately after the foot or end of the will, or by the circumstance
that a blank space shall intervene between the concluding word of the will and
the signature, or by the circumstance that the signature shall be placed among the
words of the testimonium clause or of the clause of attestation, or shall follow or
be after or under the clause of attestation, either with or without a blank space
intervening, or shall follow or be after, or under, or beside the names or one of the
names of the subscribing witnesses, or by the circumstance that the signature shall
be on a side or page or other portion of the paper or papers containing the will
whereon no clause or paragraph or disposing part of the will shall be written
above the signature, or by the circumstance that there shall appear to be sufficient
space on or at the bottom of the preceding side or page or other portion of the
same paper on which the will is written to contain the signature; and the
enumeration of the above circumstances shall not restrict the generality of the
above enactment; but no signature under the said Act or this Act shall be operative
to give effect to any disposition or direction which is underneath or which follows
it nor shall it give effect to any disposition or direction inserted after the signature
shall be made.
2 [Spent]
3-4 –
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1781
WRECK AND SALVAGE ACT 1968
1968/53 – 4 November 1968
|
1 |
Short title |
13 |
Wreck claimed by two or more persons, or |
|
2 |
Interpretation |
unclaimed | |
|
3 |
Superintendence and receiver of wreck |
14 |
Removal of wrecked ships and aircraft |
|
4 |
Duties of receiver when ship or aircraft in |
15 |
Offences in respect of wreck |
|
distress |
16 |
Receiver may seize concealed wreck | |
|
5 |
Powers of receiver in preserving ship or |
17 |
Salvage |
|
aircraft |
18 |
Determination of salvage disputes | |
|
6 |
Right of passage over adjoining lands |
19 |
Enforcing payment of salvage |
|
7 |
Receiver to suppress plunder and disorder |
20 |
Receiver may sell wreck in case of non |
|
8 |
Receiver to make inquiry |
payment | |
|
9 |
Dealing with wreck |
21 |
Foreign wreck subject to duties as an |
|
10 |
Articles washed ashore |
importation | |
|
11 |
Claim to wreck |
22 |
Offences |
|
12 |
Wreck may be sold immediately in certain |
23 |
Limitation of time in proceedings |
|
cases |
To provide for wrecks and salvage and for matters incidental and related
1 Short title
This is the Wreck and Salvage Act 1968.
2 Interpretation
In this Act –
“boat” means any small craft, whether open or deck, and includes barges,
lighters and like vessels;
“master” means any person (except a pilot) having command or charge of
any ship;
“receiver” means the receiver of wreck for Niue as specified in section 3 (1)
and includes any person appointed by him under section 3 (2);
“salvage” includes all expenses properly incurred by the salvor in the
performance of the salvage services;
“ship” means any vessel customarily used for the carriage of passengers
or goods but does not include barges, lighters and like vessels;
“wreck” includes any property which a receiver is required or authorised
by this Act to take into his possession and includes jetsam, flotsam,
ligan and derelict found in or on the shores of the sea.
1782 Niue Laws 2006 Vol 3
3 Superintendence and receiver of wreck
(1) The Financial Secretary shall be the receiver of wreck for Niue and shall
have the general superintendence throughout Niue of all matters relating to wreck
and salvage.
(2) The Financial Secretary may appoint any person to act for him and to
perform all such duties of the receiver as are mentioned in this Act, and that person
may exercise those powers in the same manner and with the same effect as if they
had been conferred upon him directly by this section; and any person preparing
to act with the authority of the receiver under this section shall be presumed to be
acting in accordance with authority in the absence of proof to the contrary.
4 Duties of receiver when ship or aircraft in distress
(1) Where a ship or aircraft is wrecked, stranded or in distress at any place
on or over or near the coast of Niue, the receiver shall upon being informed of the
circumstance, forthwith proceed there and, upon his arrival shall take the command
of all persons present and shall assign such duties and give such directions to
each person as he thinks fit for the preservation of the ship or aircraft and the lives
of the persons (shipwrecked persons) and of the cargo and equipment of the ship
or aircraft.
(2) The receiver shall not interfere between the master and the crew of the
ship, or, as the case may be between the person in command and the crew of the
aircraft; nor shall the receiver take into his possession any ship or aircraft or any
cargo or equipment belonging to it, while that ship or aircraft remains in the
possession of the master or person in command of it, unless he is requested to do
so by that master or person in command.
5 Powers of receiver in preserving ship or aircraft
(1) The receiver may, with a view to preservation of the ship or aircraft or
of the lives of the shipwrecked persons or of its cargo or equipments –
(a) Require such persons as he thinks necessary to assist him;
(b) Require the master or other person having the charge of any ship
or other vessel or boat near at hand to give such aid with his men
or ship or other vessel or boat as may be in his power; and
(c) Demand the use of any vehicle or horses that may be at hand.
(2) Every person commits an offence against this Act who –
(a) Wilfully disobeys the lawful direction of the receiver; or
(b) Refuses without reasonable cause to comply with any lawful
requisition or demand made by the receiver under this section.
6 Right of passage over adjoining lands
(1) Where a ship or aircraft is wrecked, stranded, or in distress as aforesaid,
all persons may, for the purpose of rendering assistance to the ship or aircraft, or
of saving the lives of the shipwrecked persons, or of saving the cargo or equipments
of the ship or aircraft, unless there is some public road equally convenient, pass
and repass, either with or without vehicles or horses, over any adjoining lands
without being subject to interruption by the owner or occupier, so that they do as
little damage as possible, and may also on the like condition, deposit on those
land any cargo or other article recovered from the ship or aircraft.
(2) Any damage sustained by an owner or occupier in consequence of the
exercise of the rights given by this section shall be a charge on the ship or aircraft
or cargo or articles in respect of or by which the damage is occasioned; and the
amount payable in respect of the damage shall in case of dispute be determined,
and shall in default of payment be recoverable, in the same manner as the amount
of salvage is under this Act determined or recoverable.
Wreck and Salvage Act 1968
1783
who –
(3) Every owner or occupier of land commits an offence against this Act
(a) Impedes or hinders any person in the exercise of the rights given by this section, by locking his gates, or refusing upon request to open the same, or otherwise; or
(b) Impedes or hinders the deposit on the land of any cargo or other article recovered from the ship or aircraft as aforesaid; or
(c) Prevents or endeavours to prevent any such cargo or other article from remaining deposited on the land for a reasonable time until it can be removed to a safe place of public deposit.
7 Receiver to suppress plunder and disorder
Where a ship or aircraft is wrecked, stranded, or in distress as aforesaid,
and any person plunders, creates disorder, or obstructs the preservation of the
ship or aircraft or of the shipwrecked persons or of the cargo or equipments of the
ship or aircraft, the receiver may cause that person to be apprehended.
8 Receiver to make inquiry
(1) Where any ship or aircraft is or has been in distress on or over or near
the coasts of Niue, the receiver shall, as soon as conveniently may be, examine on
oath or affirmation any person belonging to the ship or aircraft, or any other person
who may be able to give an account of it or of its cargo or stores as to the following
matters –
(a) The name and description of the ship or aircraft;
(b) The names of the owners and the master of the ship, or, as the case
may be, the names of the owners and the person in command of
the aircraft;
(c) The names of the owners of the cargo;
(d) The ports from and to which the ship or aircraft was bound;
(e) In the case of a ship, the occasion of its distress;
(f) The services rendered; and
(g) Such other matters or circumstances relating to the ship or aircraft,
or to the cargo or store of it as the receiver holding the examination
thinks necessary.
(2) The receiver holding the examination shall take the same down in
writing, and shall send it to the Cabinet who shall take such action to advise the
owners of the ship or aircraft or of the cargo and such other persons as he thinks
fit.
9 Dealing with wreck
(1) Where any person finds or takes possession of any wreck within Niue
or takes possession of and brings within the limits of Niue and wreck found outside
those limits, he shall –
(a) If he is the owner, give notice to the receiver, stating that he has
found or taken possession of the wreck, and describing the marks
by which the same may be recognised;
(b) If he is not the owner, as soon as possible deliver the same to the
receiver.
(2) Any person who fails without reasonable cause to comply with this
section commits an offence against this Act and shall in addition, if he is not the
owner, forfeit any claim to salvage, and shall be liable to pay to the owner of the
wreck if it is claimed, or, if it is unclaimed, to the person entitled to the same,
double the value of it, to be recovered in the same way as a fine of a like amount
under this Act.
1784 Niue Laws 2006 Vol 3
10 Articles washed ashore
(1) Where a ship or aircraft is wrecked, stranded, or in distress at any place
on or over or near the coasts of Niue, any cargo or equipments or other articles
belonging to or separated from the ship or aircraft which may be washed on shore,
or otherwise lost or taken from the ship or aircraft, shall be delivered to the receiver.
(2) Every person, whether the owner or not, who secrets or keeps
possession of any such cargo or equipments or article, or refuses to deliver the
same to the receiver or any person authorised by him to demand the same, commits
an offence against this Act.
(3) The receiver or any person authorised as aforesaid may take any such
cargo or equipment or article by force from the person so refusing to deliver the
same.
11 Claim to wreck
(1) Where the receiver takes possession of any wreck, he shall within 48
hours make the same known by public notice given in his name and such notice
shall include a description of the wreck and of any marks by which it is
distinguished.
(2) The owner of any wreck in the possession of the receiver, upon
establishing his claim to the same, to the satisfaction of the receiver within one
year from the time at which the wreck came into the possession of the receiver
shall, upon paying the salvage, fees, and expenses due, be entitled to have the
wreck or the proceeds delivered to him.
(3) Where any ship or aircraft is wrecked, stranded or abandoned on or
near the coasts of Niue and there is no owner or agent of the owner or other
person present in Niue authorised to protect the interests of the owners, the receiver
shall make known to the owners in New Zealand, if the ship or aircraft is registered
there, or to a trade or other representative in New Zealand of the Commonwealth
country, or, as the case may be a consular representative in New Zealand of a
foreign country, in which that ship or aircraft may have been registered or to which
that ship or aircraft may have belonged, the facts of the wreck, stranding or
abandonment, and shall act under instructions received from the owners or trade
or other representative or consular representative as the case may be, or from any
agent, duly appointed as far as related to the custody and disposal of that ship or
aircraft.
(4) Where any wreck, whether or not belonging to or separated from any
ship or aircraft to which subsection (3) applies, is found within the limits of Niue
or is brought within those limits, and it does not appear that the wreck belongs to
persons resident in Niue or in New Zealand, a trade or other representative in
New Zealand of the Commonwealth country, or as the case may be, a consular
representative of the foreign country, to which the owners of the wreck may belong
shall, be deemed in the absence of the owners and of any other agent of the owners,
to be the agent of the owners, as far as relates to the custody and disposal of the
wreck.
12 Wreck may be sold immediately in certain cases
(1) The receiver may at any time sell any wreck in his custody, if in his
opinion –
(a) It is under the value of $10; or
(b) It is so much damaged or of so perishable a nature that it cannot
with advantage be kept; or
(c) It is not of sufficient value to pay for warehousing.
Wreck and Salvage Act 1968
1785
(2) The proceeds of the sale shall, after defraying the expenses, be held by the receiver for the same purposes and subject to the same claims, rights and liabilities as if the wreck had remained unsold.
13 Wreck claimed by two or more persons, or unclaimed
(1) Where a dispute arises between 2 or more persons as to the title to the
wreck, the dispute may be determined in the same manner as if it were a dispute
as to salvage to be determined under this Act.
(2) Upon delivery of wreck or the payment of the proceeds of sale of wreck
by the receiver, he shall be discharged from all liability in respect of it; but the
delivery of it shall not prejudice or affect any question which may be raised by
third parties concerning the right or title to the wreck.
(3) Where no owner establishes a claim to any wreck found within the
limits of Niue, and in the possession of the receiver, within one year after it came
into his possession, it shall be the property of Her Majesty, and the receiver shall
sell the same and shall pay the proceeds of sale (after deducting from it the expenses
of sale and any other expenses incurred by him, and his fees, and paying thereout
to the salvors such amount of salvage as Cabinet may in each case, or by any
general rule, determine) into the Niue Government Account.
14 Removal of wrecked ships and aircraft
(1) If any ship or aircraft is sunk stranded or abandoned on or near the
coasts of Niue, and there is no authority in any other Act or rule or regulation to
remove or destroy that ship or aircraft, Cabinet may, and shall, if in his opinion
the ship or aircraft is, or is likely to become an obstruction to navigation (or danger
to property, life or limb) direct the receiver to cause that ship or aircraft to be
removed.
(2) On receiving such a direction, the receiver, by notice in writing given
to the owner or master of the ship or any agent of the owner or, as the case may be,
to the owner or person in command of the aircraft or to any agent of the owner,
shall require the owner to remove that ship or aircraft, or any part of it, in a manner
satisfactory to, and within a time to be notified by, the receiver.
(3) If the owner fails to comply with the notice, or if neither the owner nor
the master of the ship, or as the case may be, neither the owner nor the person in
command of the aircraft, nor in either case may agent of the owner can be found,
the receiver may –
(a) Take possession of and remove or destroy the whole or any part of
the ship or aircraft; and
(b) Sell, in such manner as he thinks fit, the ship or aircraft, or any part
of it, so removed, and also any property recovered from it in the
exercise of his powers under this section; and, out of the proceeds
of any such sale, without any reference to the articles from the same
of which those proceeds arise, reimburse the Crown for the whole
of the expenses of removal; and
(c) If the proceeds of the sale are insufficient to pay the whole of the
expenses of removal, recover the balance from the owner of the
ship or aircraft or from the owner of any other ship or aircraft or
from any other person if the sinking, stranding or abandonment
occurred through the fault or negligence of that other ship, aircraft
or person.
(4) Subject to subsection (5), the receiver shall hold and dispose of the
surplus (if any) of the proceeds of any sale under this section in accordance with
the provisions of this Act relating to wreck.
1786 Niue Laws 2006 Vol 3
(5) This subsection shall apply to every article belonging to or forming part of a ship or aircraft, as it applies to a ship or aircraft; and the proceeds of the sale under this section of any ship or aircraft or part of it or other property recovered shall be regarded as a common fund.
(6) In this section “owner”, in relation to any ship or aircraft which has been sunk, stranded, or abandoned, includes not only the owners of the ship or aircraft at the time of its sinking, standing or abandonment, but also any subsequent purchaser of the ship or aircraft or of any article belonging to it or forming part of it as long as the ship or aircraft remains sunk, stranded or abandoned.
15 Offences in respect of wreck
(1) Any person who takes into any port out of Niue any ship or aircraft,
stranded, derelict, or otherwise in distress, found on or near the coasts of Niue, or
any part of the cargo or equipment of it, or anything belonging to it, or any wreck
found within those limits, and there sells the same, commits an offence against
this Act and shall be liable on conviction or indictment to imprisonment for a
term not exceeding 5 years or to a fine not exceeding 20 penalty units.
(2) Every person, not being a receiver or a person lawfully acting as such
or a person acting by the command of any such person as aforesaid, commits an
offence against this Act who boards or endeavours to board any ship or aircraft
which is wrecked, stranded, or otherwise in distress on or near the coasts of Niue
unless he acts with the leave of the master of the ship or, as the case may be, the
person in command of the aircraft, and every such master or person in command
may repel him by force.
(3) Every person commits an offence against this Act who –
(a) Impedes or hinders, or endeavours in any way to impede or hinder,
the saving of any ship or aircraft stranded or in danger of being
stranded or otherwise in distress on or over or near the coasts of
Niue, or of any part of the cargo or equipment of any ship or aircraft
or of any wreck; or
(b) Secretes any wreck, or defaces or obliterates any marks on it;
(c) Wrongfully carries away or removes any part of a ship or aircraft
stranded or in danger of being stranded or otherwise in distress on
or near the coasts of Niue, or any part of the cargo or equipments of
any such ship or aircraft, or any wreck,
and every such person shall be liable for each offence to a fine not exceeding 1
penalty unit, and that penalty may be inflicted in addition to any other penalty to
which that person may be liable by law under this Act or otherwise.
16 Receiver may seize concealed wreck
(1) Where the receiver suspects or receives information that any wreck is
secreted or in the possession of some person who is not the owner of it, or that any
wreck is otherwise improperly dealt with, he may apply to any Judge of the Court
for a search warrant and such Judge shall have power to grant such a warrant,
and the receiver, by virtue of it, may enter any house or other place, wherever
situate, and also any ship, and search for, seize, and detain any such wreck found
there.
(2) If any such seizure of wreck is made in consequence of information given by any person to the receiver, on a warrant being issued under this section the informant shall be entitled by way of salvage to such sum, not exceeding in any case $10 as the Cabinet allows.
Wreck and Salvage Act 1968
1787
17 Salvage
(1) Where services are rendered –
(a) Wholly or in part within Niue waters in saving life from any ship
or aircraft; or
(b) Elsewhere in saving life from any Commonwealth ship or any
unregistered ship which is owned wholly by persons qualified to
own a registered New Zealand ship, or any aircraft which is
registered in or belongs to any Commonwealth country –
there shall be payable to the salvor by the owner of the ship or aircraft or cargo or
equipment saved a reasonable amount of salvage, to be determined in case of
dispute in manner hereinafter mentioned.
(2) Salvage in respect of the preservation of life, when payable by the
owners of the ship or aircraft, shall be payable in priority to all other claims for
salvage.
(3) Where the ship or aircraft and its cargo and equipment are destroyed,
or their value is insufficient, after payment of the actual expenses incurred, to pay
the amount of salvage payable in respect of the preservation of life, Cabinet may
award to the salvor, out of any money appropriated by the Assembly for the
purpose, such sum as he thinks fit in whole or part satisfaction of any amount of
salvage so left unpaid.
(4) Where –
(a) Any ship or aircraft is wrecked, stranded, or in distress on or over
or near the coasts of Niue, and services are rendered by any person
in assisting that ship or aircraft, or in saving the cargo or equipments
of it or any part of it, or
(b) Services are rendered by any person other than the receiver in saving
any wreck;
there shall be payable to the salvor by the owners of the ship or aircraft or cargo or
wreck a reasonable amount of salvage, to be determined in case of dispute in
manner hereinafter mentioned.
18 Determination of salvage disputes
(1) Disputes as to the amount of salvage, whether of life or property, arising
between the salvor and the owners of any ship or aircraft or cargo or equipments
or wreck shall, if not settled by agreement, arbitration or otherwise, be determined
by the Court.
(2) Disputes relating to salvage may be determined on the application either
of the salvor or of the owner of the property saved, or of their respective agents.
(3) The Court may, for the purpose of determining any dispute relating to
salvage, call to its assistance as assessor any person conversant with maritime or
aeronautical affairs; and there shall be paid, as part of the cost of the proceedings,
to every such assessor in respect of his services such sum as Cabinet directs.
(4) Any party aggrieved by the decision of the Court may, if the sum in
dispute exceeds $400, appeal to the Court of Appeal.
19 Enforcing payment of salvage
(1) Where salvage is due to any person under this Act the receiver shall –
(a) If the salvage is due in respect of services rendered in assisting any
ship or aircraft, or in saving life from it, or in saving the cargo and
equipments of it, detain the ship or aircraft and cargo or equipments;
and
1788 Niue Laws 2006 Vol 3
(b) If the salvage is due in respect of the saving of any wreck, and the wreck is not sold as unclaimed under this Act, detain the wreck.
(2) Subject as hereinafter mentioned, the receiver shall detain the ship or aircraft and the cargo and equipments, or the wreck (hereinafter referred to as detained property), until payment is made for salvage, or process is issued for its arrest or detention by a competent court.
(3) The receiver may release any detained property if security is given to his satisfaction or, if the claim for salvage exceeds $400 and any question is raised as to the sufficiency of the security, to the satisfaction of the Court.
(4) Any security given for salvage under this section to an amount exceeding $400 may be enforced by the Court in the same manner as if bail had been given in that Court.
20 Receiver may sell wreck in case of non-payment
(1) The receiver may sell any detained property if the persons liable to pay
salvage in respect of which the property is detained are aware of the detention, in
the following cases, namely –
(a) Where the amount is not disputed, and payment of the amount
due is not made within 90 days after the amount is due; or
(b) Where the amount is disputed, but no appeal lies from the first
Court to which the dispute is referred, and payment is not made
within 90 days after the decision of the first Court; or
(c) Where the amount is disputed, and an appeal lies from the decision
of the first Court to some other Court, and within 90 days of the
decision of the first Court neither payment of the sum due is made
nor evidence is produced that proceedings are to be commenced
for the purpose of appeal.
(2) The proceeds of sale of detained property shall, after payment of the
expenses of sale, be applied by the receiver in payment of the expenses, fees, and
salvage, and the surplus (if any) shall be paid to the owners of the property or any
other persons entitled to receive the same.
21 Foreign wreck subject to duties as an importation
(1) All wreck, being goods brought or coming into Niue from parts beyond
the seas shall be subject to the same duties as if the same was imported into Niue,
and if any question arises as to the origin of the goods they shall be deemed to be
the produce of such country as Cabinet may on investigation determine.
(2) Cabinet may permit all goods saved from any ship or aircraft stranded
or wrecked on her homeward voyage to be forwarded to the port of her original
destination, and all goods saved from any ship or aircraft stranded or wrecked on
her outward voyage to be returned to the port at which they were laden; but
Cabinet shall take security for the revenue in respect of those goods.
(3) In this section “goods’” includes any part of any ship or aircraft and
the cargo, machinery, and equipment and any other property belonging to it.
22 Offences
(1) Every person who commits an offence against this Act for which no
penalty is provided elsewhere than in this section shall be liable in respect of each
offence to a fine not exceeding 2 penalty units.
(2) Where an offence against this Act is a continuing one, and no penalty is
provided for the continuance of it elsewhere than in this section, every person
who commits that offence shall, in addition to any other liability, be liable to a fine
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not exceeding 0.5 penalty units for every day or part of a day during which the offence continues.
23 Limitation of time in proceedings
No conviction for an offence shall be made under this Act other than for an
offence under section 15, unless such proceeding is commenced within one year after the commission of the offence.
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