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Tonga Sessional Legislation |
TONGA
Act 11 of 2005
Arrangement of Sections
Section
PART I – PRELIMINARY
1 Short
title.
2
Interpretation.
3 Act binds the
Crown.
PART II - WASTE MANAGEMENT SERVICE AREAS
4 Waste management service
areas.
PART III - APPROVED WASTE MANAGEMENT AUTHORITY
5 Approved waste
Authority.
6 Functions of an approved
Authority.
7 Performance of community
obligations.
8 Powers of an approved
Authority.
9 Powers of the
Minister.
PART IV - MANAGEMENT OF AN APPROVED AUTHORITY
10 Management of an
Approved Authority.
11 Staff of an
approved Authority.
12 Protection of
assets of an approved Authority.
PART V - FEES AND CHARGES IMPOSED BY AN APPROVED AUTHORITY
13 Fees and
charges.
14
Exemptions.
15 Interest on unpaid
dues.
16 Collection of fees and
charges.
PART VI - PLANNING AND REPORTING BY AN APPROVED AUTHORITY
17 Operating
plans.
18 Reporting by an approved
Authority.
PART - VII OPERATIONS OF AN APPROVED AUTHORITY
19 Contracting waste
services.
20 Operating procedures and
codes of practice.
21 Recycling of
wastes.
PART - VIII REGULATION OF WASTES AND WASTE RELATED ACTIVITIES
22 Environmental and
Public Health Standards.
23
Registration and licensing.
PART IX - OFFENCES RELATING TO WASTES
24 Waste related
offences.
25 Enforcement
provisions.
26 Prosecutions under this
Act.
PART X - MISCELLANEOUS PROVISIONS
27
Regulations.
28 Relationship with
other Acts.
29 Savings and
transitional provisions.
SCHEDULE
--------------------------------------
Act 11 of 2005
AN ACT TO PROVIDE FOR THE COLLECTION AND DISPOSAL OF SOLID WASTES AND THE MANAGEMENT OF ALL WASTES IN THE KINGDOM
I assent,
'ULUKALALA
LAVAKA ATA,
10th January,
2006
[25th October, 2005]
BE IT
ENACTED by the King and the Legislative
Assembly of Tonga in the Legislature of the Kingdom as follows:
PART I - PRELIMINARY
1 Short
title
This Act may be cited as the
Waste Management Act
2005.
2
Interpretation
In this Act, unless
the context otherwise requires:
"the Authority" means the Waste Authority Ltd;
"approved Authority" means
(a) in relation to the Tongatapu waste management service area, the Waste Authority Ltd; and
(b) in relation to other waste management service areas, the Ministry of Health or other entity appointed in accordance with section 5(3);
"Board" means the Board of an approved Authority;
"Chief Executive Officer" means the Chief Executive Officer of an approved Authority;
"Department" means the Department of Environment;
"hazardous waste" includes any wastes which are, or which have the potential to be, toxic or poisonous, or which may cause injury or damage to human health or the environment;
"island of Tongatapu" means all islands listed in the Schedule;
"Minister" unless the context otherwise requires, means the Minister of Environment;
"waste" includes:
(a) garbage, household refuse, rubbish, scraps and trade wastes; and
(b) any other matter or thing determined from time to time by an approved Authority to be waste for the purposes of this Act in the waste management service area under its control; and
"waste management service area "includes:
(a) the Tongatapu waste management service area designated under section 4(1); and
(b) any other waste management service area designated in accordance with section 4.
3
Act binds the Crown
This Act shall
bind the Crown.
PART II - WASTE MANAGEMENT SERVICE AREAS
4 Waste
management service areas
(1) The
Island of Tongatapu is designated as the Tongatapu waste management service
area.
(2) Other waste management
service areas, being islands or parts of islands, may be designated by the
Minister, with advice from the
Minister of Health from time to
time.
(3) The Minister may, with
advice from the Minister of Health, revoke, alter or add to any waste management
service area.
PART III - APPROVED WASTE MANAGEMENT AUTHORITY
5
Approved waste Authority
(1) The
Authority shall be the approved Authority for the Tongatapu waste management
service area.
(2) The Ministry of
Health shall be the approved Authority for all areas of Tonga other than the
island of Tongatapu, until waste
management service areas are declared for those
areas under section 4.
(3) The
Minister of Health may, with the consent of Cabinet, appoint any appropriate
entity to be an approved Authority for any waste
management service area, and
may substitute any appropriate entity for an approved
Authority.
6
Functions of an approved
Authority
The functions of an
approved Authority shall be to establish, improve, maintain, operate and manage
the collection and disposal of
all waste in the Kingdom, including, but not
limited to:
(a) the provision of commercial, industrial and residential waste collection services;
(b) the provision of waste management facilities, including the identification, development and management of waste dump site areas;
(c) ensuring the sound management of waste dump site areas and approved dumping and waste storage sites that incorporate comprehensive environmental management systems, including leachate containment and management measures;
(d) the provision of appropriate waste treatment, storage and disposal facilities;
(e) the provision of waste management services to aircraft and ships and the imposition of requirements to be observed by pilots and ship masters;
(f) the promotion of recycling and the implementation of measures to minimise wastes having particular adverse implications for human health and the environment;
(g) monitoring the effects of wastes on human health and the environment, and cooperating with public health and environment officers in the discharge of their responsibilities relating to regulating and monitoring wastes and monitoring waste management processes and facilities;
(h) regulating persons involved in the transportation, storage and disposal of wastes in accordance with this Act and any regulations made under it;
(i) the preparation, adoption and enforcement of rules, operating manuals, codes of practice and standards regulating activities associated with the management of wastes in Tonga;
(j) implementing litter and waste control measures;
(k) the preparation of reports and the compilation of statistics relevant to the management of wastes in Tonga, and the regular reporting of such matters in accordance with this Act;
(l) raising public awareness of matters concerning the minimisation of the generation of wastes and the effective management of wastes; and
(l) performing any other functions provided for by regulations made under this Act.
7
Performance of community
obligations
(1) An approved
Authority shall undertake community obligations at the direction of the Board,
which may involve any activity aimed
at keeping public areas clean and free of
wastes, including:
(a) street and foreshore cleaning and other activities to maintain the cleanliness of public areas; and
(b) providing waste receptacles in public areas and other appropriate facilities for minimising and dealing with wastes on public roads and reserves, and other areas accessible to the public.
(2)
An approved Authority shall only be obliged to perform a community obligation
under this section if the Government undertakes
to pay to the approved Authority
the agreed cost of providing the necessary services and undertaking the required
activities.
8
Powers of an approved
Authority
Subject to this Act and
any regulations made under this Act, an Approved Authority shall have all the
powers, rights and authorities
necessary or expedient to enable them to exercise
their functions, including, but not limited to the power to:
(a) perform any responsibility and exercise any power vested in them by this Act or regulations made under this Act or any other enactment;
(b) do anything necessary to ensure that wastes in Tonga are managed in an environmentally sound manner with minimum adverse effects to human health;
(c) do anything necessary to assist other government agencies to ensure that Tonga is in compliance with its international obligations in relation to the management and movement of wastes;
(d) undertake prosecutions for breaches of this Act, and to recover fines imposed and the costs arising from taking such legal proceedings;
(e) take legal proceedings to prevent or restrain activities which are in breach of this Act; and
(f) otherwise exercise the powers of a company and public enterprise under the laws of Tonga.
9
Powers of the Minister
For the
purposes of implementing this Act, the Minister may:
(a) exercise any of the powers conferred by this Act or any other law applying to the administration and operations of an approved Authority;
(b) require that an approved Authority undertakes its activities in accordance with any government policy relevant to the protection of the environment; and
(c) give directions to an approved Authority, not inconsistent with the provisions of this Act, to ensure that waste management requirements and practices in the area of responsibility of that approved Authority are implemented in accordance with principles and standards of sound environmental management.
PART IV - MANAGEMENT OF AN APPROVED AUTHORITY
10
Management of an Approved
Authority
(1) The provisions of
this Part of the Act do not apply to the operations or administration of the
Ministry of Health in its capacity
as an approved
Authority.
(2) The Authority or
any approved Authority is hereby a public enterprise for the purposes of the
Public Enterprises Act 2002.
(3)
The Directors of an approved Authority shall be appointed by the Minister of
Finance and hold office in accordance with the Public Enterprises Act
2002.
11 Staff
of an approved Authority
(1) The
Board shall appoint a Chief Executive Officer in accordance with section 26 of
the Public Enterprises Act 2002, and shall determine
(a) procedures for the appointment and termination of staff, other than the Chief Executive Officer;
(b) the terms and conditions of employment of the staff;
(c) appropriate arrangements for disciplining staff; and
(d) financial and tendering procedures which are consistent with the procedures of the government.
(2)
Arrangements may be made for the secondment of public servants to an approved
Authority.
12
Protection of assets of an approved
Authority
No asset of an approved
Authority shall be subject to distress or taken in execution of any judgment or
legal proceedings against
an approved Authority, its staff or its contractors,
if the asset is:
(a) any building, plant, equipment or installation used at or situated at a waste dump site or waste treatment, dumping or storage site operated by the approved Authority;
(b) any vehicle or attachment to a vehicle used for the purposes of waste collection by or on behalf of an approved Authority; or
(c) any item of office equipment used at the premises of an approved Authority.
(2)
Nothing in this section shall affect
(a) any legal rights or obligations arising from an approved Authority using any of the assets mentioned in subsection (1) as security for a loan; or
(b) the powers of a liquidator under the Companies Act 1995 in the event of the winding up of an approved Authority.
PART V - FEES AND CHARGES IMPOSED BY AN APPROVED AUTHORITY
13 Fees
and charges
(1) An approved
Authority may levy and vary the following fees:
(a) an annual garbage collection fee which may apply to all residential premises in a waste management service area.
(b) the commercial waste collection fee which shall apply to all commercial premises with zero rating to commercial premises given satisfactory arrangements for proper management and disposal of wastes generated on the premises;
(c) for depositing wastes at waste dump sites and approved dumping grounds; and
(d) disposal of hazardous wastes.
(2)
The approved Authority may determine which premise is residential or commercial
for the purpose of this
Act.
14
Exemptions
(1) The approved
Authority may grant exemption with conditions from payment of fees and charges
imposed under this Part of this
Act.
(2) Exemptions from
residential garbage collection charge may be granted on:
(a) written application by the owner or occupier of the residential premise; and
(b) the approved Authority is satisfied that the residential premise -
(i) have not been or will not be occupied for a continuous period of 3 months; or
(ii) is not accessible to the garbage collection vehicles; or
(iii) meet any other conditions or requirements approved by the Board as being grounds for the granting of remission.
15
Interest on unpaid dues
An
approved Authority may charge interest at the prescribed rate per annum on any
fees and charges not paid within 30 days of the
date upon which payment is
due.
16
Collection of fees and charges
(1)
All fees and charges payable to an approved Authority in accordance with this
Part of this Act may be recovered by the approved
Authority as a
debt.
(2) The garbage collection
fee imposed on premises may be recovered in accordance with subsection (1) from
the owner or occupier at
the time the fee was incurred of the
premises.
(3) An approved
Authority may, subject to any directions given by the Board, enter into
arrangements for the collection of fees and
charges by persons or organisations
approved by the Board to be collection agents on behalf of the approved
Authority.
PART VI PLANNING AND REPORTING BY AN APPROVED AUTHORITY
17
Operating plans
(1) Each approved
Authority shall prepare a three yearly operating plan with financial projections
forming the basis of each year's
annual operating plan and annual
estimates.
(2) Operating plans
prepared in accordance with subsection (1) shall be prepared so as to reflect
the views and interests of Government
as expressed through the Minister and of
the householders and commercial businesses in the waste management service area
and the
Chief Executive Officer shall ensure that adequate opportunities are
provided during its formulation to permit such views and interests
to be
expressed.
(3) The Chief Executive
Officer of an approved Authority shall during the month of April in each year
prepare an Annual Operating
Plan and Estimates of Revenue and Expenditure for
the next financial year for approval by the
Board.
(4) Upon approval of the
Annual Operating Plan and Estimates of Revenue and Expenditure by a Board of an
approved Authority the Chief
Executive Officer shall immediately forward copies
to the Minister of Finance and the
Minister.
(5) The approval Annual
Estimates shall be sufficient authority for the Chief Executive Officer to
approve the expenditure of moneys
for the specified purposes up to an amount not
exceeding the approved amounts for each
purpose.
(6) No expenditure shall
exceed the amounts approved in the Annual Estimates unless the Board's consent
has been
given.
18
Reporting by an approved
Authority
In addition to the
reporting requirements imposed on an approved Authority under the Public
Enterprise Act 2002 and the Companies Act 1995, an approved Authority
shall:
(a) prepare and submit reports relating to any aspect of waste management under its responsibility at the request of the Minister;
(b) ensure that the Minister is immediately notified of any matter relating to waste management that comes to its notice which may adversely affect human health;
(c) ensure that the Minister is immediately notified of any matter relating to waste management that comes to its notice which may adversely affect the environment; and
(d) arrange for programmes of public information concerning waste management issues with an aim to:
(i) minimise the generation of wastes;
(ii) ensure that wastes are stored and disposed of in a manner which minimises their harmful effects on human health and the environment; and
(iii) permit informed decisions to be made about waste related matters which may affect the health and well-being of the community.
PART VII OPERATIONS OF AN APPROVED AUTHORITY
19
Contracting waste services
(1) An
approved Authority may enter into contractual arrangements for the provision of
services necessary to discharge its functions
and to perform its waste
management activities, including activities related to:
(a) the management and operation of waste dump sites and approved waste dumps, waste storage and treatment facilities;
(b) the collection and transportation of wastes;
(c) any aspect of the administration of an approved Authority; and
(d) other waste related activities including the dissemination of information and the raising of public awareness.
(2)
The Ministry of Works may be engaged as a contractor by an approved Authority in
accordance with subsection (1) and for all such
purposes it shall have the same
status as all other contractors and potential
contractors.
(3) Subject to
subsection (4), a contractor engaged by an approved Authority in accordance with
this section may be authorised to:
(a) collect fees on behalf of an approved Authority and account for them to the approved Authority;
(b) give any necessary direction or impose any necessary operational requirement, consistent with this Act and any regulation, rule, operating procedure or code of practice made under this Act; and
(c) take any other necessary action or do any other necessary thing in accordance with the contract made with the approved Authority.
(4)
No contractor to an approved Authority may be authorised to:
(a) exercise any power of registration or grant any licence in accordance with this Act; or
(b) do any other act or thing which is prescribed by regulations made under this Act as being beyond the power of a contractor.
20
Operating procedures and codes of
practice
(1) For any purpose
associated with its operations, an approved Authority may make and impose rules,
operating procedures, guidelines
and codes of practice relevant to any aspect of
its waste management
functions.
(2) Without limiting
the generality of subsection (1), an approved Authority may impose rules
prescribing:
(a) the size and nature of waste receptacles;
(b) the placing of wastes and waste receptacles so as to facilitate the collection of wastes;
(c) the provision of stands and requirements to ensure the effective containment of wastes;
(d) the separation of certain types of wastes; and
(e) any other matter to facilitate the orderly keeping and collection of wastes.
(3)
An approved Authority may display signs at its operational facilities and on its
vehicles which give directions to be observed
by all persons within the
facilities, or in the vicinity of the vehicles, of an approved
Authority.
(4) Officers and
contractors of an approved Authority may give directions to any person within
the areas and facilities of an approved
Authority for the purpose of ensuring
compliance with any rule, operating procedure, guideline, code of practice or
sign made or
displayed in accordance with this
section.
(5) Any person who fails
or refuses to comply with any rules, operating procedure, guideline, code of
practice or sign made or displayed
in accordance with this section, or with any
direction given under subsection (4), commits an offence and shall upon
conviction be
liable to a fine not exceeding
$1000.
21
Recycling of wastes
(1) An
approved Authority shall promote the recycling of wastes and for this purpose
rules, operating procedures, guidelines, codes
of practice, signs and directions
may be made, displayed or given in accordance with section
20.
(2) Persons or companies
engaged in commercial activities associated with the recycling of wastes
shall:
(a) comply with all requirements imposed under this section;
(b) ensure that no aspect of their activities gives rise to a breach of Tonga's international obligations associated with the movement and management of wastes; and
(c) observe internationally accepted practices in relation to their waste related activities.
(3)
For the purposes of achieving compliance with subsection (2), regulations made
under this Act may require that persons or companies
engaged in commercial
activities associated with the recycling of wastes be registered or licensed,
and such requirements may be
administered by the Department or by an approved
Authority in accordance with the regulations.
PART - VIII REGULATION OF WASTES AND WASTE RELATED ACTIVITIES
22
Environmental and Public Health
Standards
(1) Environmental
standards relating to waste management practices and facilities may be
prescribed by the Minister, and the Department
shall be responsible for the
monitoring and enforcement of the approved
standards.
(2) Public health
standards relating to waste management practices and facilities may be
prescribed by the Minister of Health, and
the Ministry of Health shall be
responsible for the monitoring and enforcement of the approved
standards.
(3) Standards imposed
under this section may be applied to an approved Authority and its contractors
and to any other persons identified
in the applicable
standard.
(4) Any person to whom
an approved standard applies who fails or refuses to comply with the standard
commits an offence and shall
upon conviction be liable to a fine not exceeding
$2,000.
(5) In addition to any
fine imposed under subsection (4), the failure to observe or comply with an
approved standard shall be grounds
for:
(a) suspending or revoking any registration or licence applying to the person in breach;
(b) refusing any subsequent registration or licence sought by the person in breach; and
(c) terminating any contract between an approved Authority and the person in breach.
23
Registration and licensing
(1) All
waste dump sites require approval from the Minister of Lands and Natural
Resources and are required to be licensed by the
Minister under this
Act.
(2) The Minister may require
the registration and licensing of other waste management facilities and
operators in accordance with
regulations made under this
Act.
(3) Any person who operates a
waste dump site without a license issued by the Minister or in breach of any
condition of such a license
commits in offence and shall upon conviction be
liable to a fine not exceeding $10,000 or to imprisonment for a term not
exceeding
2 years, or both.
PART IX - OFFENCES RELATING TO WASTES
24
Waste related offences
(1) An
person who imports into the Kingdom any toxic or hazardous wastes, except in
compliance with international obligations applying
to Tonga, commits an offence
and shall upon conviction be liable to a fine not exceeding $100,000 or to
imprisonment for a term not
exceeding 25 years, or
both.
(2) Any person who arranges
for the movement of toxic or hazardous wastes into, out of or within the
Kingdom, or for their storage
or disposal so as to cause a breach of an
international obligation applying to Tonga commits an offence and shall upon
conviction
be liable to a fine not exceeding $100,000 or to imprisonment for a
term not exceeding 25 years, or
both.
(3) Any person who deposits
or dumps wastes at a place other than an approved waste dump site so as to cause
pollution to a public
area or to land belonging to the Government or to another
person commits an offence and shall upon conviction be liable to a fine
not
exceeding $5,000 or to imprisonment for a term not exceeding 12 months, or
both.
(4) Any person who drops or
throws or deposits any waste on a roadway, vacant land or foreshore, or into any
stream, creek, pool,
well, lake or the sea commits an offence and shall upon
conviction be liable to a fine not exceeding
$1,000.
(5) Any person who
impedes, hinders or obstructs:
(a) an officer of an approved Authority in the exercise of a function or power under this Act; or
(b) any contractor engaged by an approved Authority to undertake a waste management service,
commits
an offence and shall upon conviction be liable to a fine not exceeding
$1000.
25
Enforcement provisions
(1) The
powers provided for under subsection (2) may be exercised by police officers,
environment officers, authorised officers under
the Public Health Act 1992 and
officers of an approved Authority and its contractors who are authorised by a
Chief Executive Officer.
(2) For
the purposes of implementing and enforcing the provisions of this Act, and
monitoring and containing the effects of wastes
on human health and the
environment, the persons referred to in subsection (1) may:
(a) enter upon any land;
(b) enter private premises at all reasonable times where it is believed on all reasonable grounds that there has been any contravention of this Act, after notifying the owner of their intention to do so;
(c) take samples of wastes, soil and water for testing and analysis;
(d) require the production of records and information relevant to the management, storage, movement and disposal of waste; and
(e) order that certain wastes or materials apparently containing or affected by wastes be contained, removed or otherwise dealt with so as to minimise their adverse affects on human health or the environment.
(3)
Any person who refuses or fails to comply with an order given under subsection
(2)(e) commits an offence and shall upon conviction
be liable to a fine not
exceeding $10,000 or to imprisonment for a term not exceeding 2 years, or
both.
26
Prosecutions under this Act
(1)
Prosecutions for offences against this Act may be undertaken by police officers,
environment officers, authorised officers under
the Public Health Act 1992 and
officers of an approved Authority who are authorised by a Chief Executive
Officer.
(2) Where prosecutions
are undertaken by an approved Authority the costs or any part of the costs of
any legal practitioner retained
by an approved Authority for that purpose may be
ordered by a court to be paid to the approved Authority.
PART X - MISCELLANEOUS PROVISIONS
27
Regulations
The Minister may, with
the consent of Cabinet, make regulations for the implementation of this Act,
including but not limited to,
regulations which provide for all or any of the
following:
(a) the proper and efficient administration and management of an approved Authority;
(b) additional functions and powers of an approved Authority;
(c) the provision of community obligations by an approved Authority and the payments to be made for these;
(d) the imposition and collection of waste related fees and charges and interest rates on unpaid fees and the raising of revenues for waste related purposes;
(e) special levies on particular goods the disposal of which is likely to have adverse effects on the environment;
(f) additional charges on premises in commercial areas where services are provided by an approved Authority to maintain cleanliness of streets, footpaths and public areas;
(g) any other type of special levy relating to waste management services, or for the purpose of raising revenues for the effective management of wastes;
(h) the payment, collection and use of special levies and additional charges; and
(i) the effective management of wastes in waste management service areas;
(j) prescribing offences and imposing penalties being fines not exceeding $10,000 or imprisonment for a period not exceeding 2 years, or both.
28
Relationship with other
Acts
Notwithstanding the
provisions of the Business Licenses Act 2002, an approved Authority and its
contractors may engage in activities
associated with the storage, disposal and
transport of toxic wastes, if such activities comply with the requirements of
this Act.
29
Savings and transitional
provisions
(1) The Minister of
Health may, on behalf of the Ministry of Health in its capacity as an approved
Authority:
(a) fix fees and charges in accordance with section 13, which shall be subject to the consent of Cabinet and be published in the Gazette upon approval;
(b) exercise the powers of a Chief Executive Officer as provided for in sections 13 and 14;
(c) make and impose rules, operating procedures, guidelines and codes of practice in accordance with section 20;
(d) otherwise exercise any power of a Board or Chief Executive Officer for the management of wastes in the waste service under the control of the Ministry of Health;
(e) delegate the power to review a decision made by the Minister of Health under this Act to an appropriate person to be exercised in accordance with this Act; and
(f) delegate any other power of an approved Authority to an appropriate person.
(2)
The environmental impact approval given for the Tapuhia waste dump site prior to
the commencement of this Act and the Environmental Impact Assessment Act 2003
shall be sufficient environmental impact approval for all lawful
purposes.
Passed by the
Legislative Assembly this 19 day of October, 2005.
______________________________
SCHEDULE
Fafa Nukunukumotu
Pangaimotu Tongatapu, excluding the island of 'Eua
--------------------------------------------
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