Waste Minimisation Act 2008
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Reprint as at 1 January 2016
Waste Minimisation Act 2008
Public Act |
2008 No 89 |
|
Date of assent |
25 September 2008 |
|
Commencement |
see section 2 |
Note
Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.
Note 4 at the end of this reprint provides a list of the amendments incorporated.
This Act is administered by the Ministry for the Environment.
Contents
The Parliament of New Zealand enacts as follows:
1 Title
This Act is the Waste Minimisation Act 2008.
2 Commencement
(1)
Part 3 (other than section 41) and section 62 come into force on 1 July 2009.
(2)
The rest of this Act (including section 41) comes into force on the day after the date on which it receives the Royal assent.
Part 1 Preliminary provisions
3 Purpose of this Act
The purpose of this Act is to encourage waste minimisation and a decrease in waste disposal in order to—
(a)
protect the environment from harm; and
(b)
provide environmental, social, economic, and cultural benefits.
4 Act binds the Crown
This Act binds the Crown.
5 Interpretation
(1)
In this Act, unless the context requires another meaning,—
accredited scheme means a product stewardship scheme accredited by the Minister under section 15
appointed levy collector means a person appointed in accordance with section 40(1)(a) to collect the levy
auditor means a person appointed under section 87(1)
disposal has the meaning set out in section 6
disposal facility has the meaning set out in section 7
diverted material means any thing that is no longer required for its original purpose and, but for commercial or other waste minimisation activities, would be disposed of or discarded
enforcement officer means a person appointed as an enforcement officer under section 76(1) or (2)
environment has the same meaning as in section 2(1) of the Resource Management Act 1991
financial year means a period of 12 months ending with 30 June
infringement fee means the amount prescribed as the infringement fee for the infringement offence concerned
infringement offence means an offence prescribed as an infringement offence under section 59(a)
judicial officer means a District Court Judge, a Justice of the Peace, a Community Magistrate, or a Registrar (not being a constable)
levy means the levy imposed by section 26
levy collector, in relation to a disposal facility, means—
(a)
the Secretary, if there is no appointed levy collector for the facility; or
(b)
the appointed levy collector for the facility
levy money means the money paid as levy
Medical Officer of Health has the same meaning as in section 2(1) of the Health Act 1956
Minister means the Minister for the Environment
nuisance has the same meaning as in section 29 of the Health Act 1956
objectives, in relation to a product stewardship scheme, means the objectives for the product to which the scheme relates as set under section 14(c)(i)
operator means the person in control of a disposal facility or other facility
prescribed means prescribed by regulations made under this Act
priority product means a product declared to be a priority product in accordance with section 9
producer means a person who—
(a)
manufactures a product and sells it in New Zealand under the person’s own brand; or
(b)
is the owner or licence holder of a trademark under which a product is sold in New Zealand; or
(c)
imports a product for sale in New Zealand; or
(d)
manufactures or imports a product for use in trade by the person or the person’s agent
product includes—
(a)
packaging; and
(b)
a class of product
recovery—
(a)
means extraction of materials or energy from waste or diverted material for further use or processing; and
(b)
includes making waste or diverted material into compost
recycling means the reprocessing of waste or diverted material to produce new materials
reduction means—
(a)
lessening waste generation, including by using products more efficiently or by redesigning products; and
(b)
in relation to a product, lessening waste generation in relation to the product
reuse means the further use of waste or diverted material in its existing form for the original purpose of the materials or products that constitute the waste or diverted material, or for a similar purpose
sale includes—
(a)
an offer for sale; and
(b)
distribution or delivery, whether or not for valuable consideration (including delivery to an agent for sale on consignment)
scheme manager means the contact person for an accredited scheme
Secretary means the Secretary for the Environment appointed in accordance with section 29 of the Environment Act 1986
territorial authority has the same meaning as in section 5(1) of the Local Government Act 2002
treatment—
(a)
means subjecting waste to any physical, biological, or chemical process to change its volume or character so that it may be disposed of with no or reduced adverse effect on the environment; but
(b)
does not include dilution of waste
waste—
(a)
means any thing disposed of or discarded; and
(b)
includes a type of waste that is defined by its composition or source (for example, organic waste, electronic waste, or construction and demolition waste); and
(c)
to avoid doubt, includes any component or element of diverted material, if the component or element is disposed of or discarded
Waste Advisory Board or Board means the Waste Advisory Board established by section 89
waste management and minimisation means waste minimisation and treatment and disposal of waste
waste management and minimisation plan or plan means a waste management and minimisation plan adopted by a territorial authority under section 43
waste minimisation means—
(a)
the reduction of waste; and
(b)
the reuse, recycling, and recovery of waste and diverted material.
(2)
In this Act,—
(a)
benefits expected from implementing regulations, or from reduction, reuse, recycling, recovery, or treatment of a product, include both monetary and non-monetary benefits:
(b)
costs expected from implementing regulations include both monetary and non-monetary costs.
Section 5(1) judicial officer: amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).
6 Meaning of disposal
(1)
In this Act, unless the context requires another meaning, disposal means—
(a)
the final (or more than short-term) deposit of waste into or onto land set apart for that purpose; or
(b)
the incineration of waste.
(2)
In subsection (1)(a), for all purposes relating to the levy, final (or more than short-term) deposit of waste means any deposit of waste other than a deposit referred to in section 26(3).
(3)
In subsection (1)(b), incineration means the deliberate burning of waste to destroy it, but not to recover energy from it.
7 Meaning of disposal facility
(1)
In this Act, unless the context requires another meaning, disposal facility means—
(a)
a facility, including a landfill,—
(i)
at which waste is disposed of; and
(ii)
at which the waste disposed of includes household waste; and
(iii)
that operates, at least in part, as a business to dispose of waste; and
(b)
any other facility or class of facility at which waste is disposed of that is prescribed as a disposal facility.
(2)
In subsection (1)(a)(ii), household waste means waste from a household that is not entirely from construction, renovation, or demolition of the house.
Part 2 Product stewardship
8 Purpose of Part
The purpose of this Part is to encourage (and, in certain circumstances, require) the people and organisations involved in the life of a product to share responsibility for—
(a)
ensuring there is effective reduction, reuse, recycling, or recovery of the product; and
(b)
managing any environmental harm arising from the product when it becomes waste.
Priority products
9 Declaration of priority products
(1)
The Minister may, by notice in the Gazette, declare a product to be a priority product.
(2)
The Minister must not make the declaration unless he or she is satisfied that—
(a)
either—
(i)
the product will or may cause significant environmental harm when it becomes waste; or
(ii)
there are significant benefits from reduction, reuse, recycling, recovery, or treatment of the product; and
(b)
the product can be effectively managed under a product stewardship scheme.
(3)
Before the Minister makes the declaration, he or she—
(a)
must obtain and consider the advice of the Waste Advisory Board; and
(b)
must consider any public concerns about environmental harm associated with the product when it becomes waste (including concerns about its disposal); and
(c)
must provide the public with an opportunity to comment on the proposal; and
(d)
must consider the effectiveness of any relevant voluntary product stewardship scheme in terms of the criteria set out in subsection (2); and
(e)
may consider any other matters that he or she thinks relevant.
(4)
The Minister may, by notice in the Gazette, revoke a declaration made under subsection (1) if he or she is satisfied that it is appropriate to do so.
Product stewardship schemes
10 Product stewardship schemes required for priority products
As soon as practicable after a product is declared to be a priority product,—
(a)
a product stewardship scheme for the product must be developed; and
(b)
accreditation of the scheme must be obtained.
11 Voluntary product stewardship schemes
A product stewardship scheme that has been developed for a non-priority product may be accredited under this Part.
12 Ministerial guidelines for product stewardship schemes for priority products
(1)
The Minister may, by notice in the Gazette, publish guidelines about the contents and expected effects of product stewardship schemes for priority products.
(2)
The guidelines may be general guidelines or guidelines that apply to 1 or more products.
(3)
Without limiting subsection (1), the guidelines may include 1 or more of the following matters:
(a)
the duration of a scheme:
(b)
the expected reduction in harm to the environment from the implementation of a scheme or the expected benefits from reduction, reuse, recycling, recovery, or treatment of the product to which a scheme relates:
(c)
the time within which the matters specified in paragraph (b) are expected to occur:
(d)
the expected waste minimisation, treatment, or disposal objectives for the product to which a scheme relates and the time frames for meeting them:
(e)
reporting and information requirements, including information to be provided to purchasers, users, and handlers of the product to which a scheme relates:
(f)
the time within which an application for accreditation of the scheme is expected to be made under section 13.
(4)
Before the Minister makes any guidelines, he or she must—
(a)
obtain and consider the advice of the Waste Advisory Board; and
(b)
be satisfied that there has been adequate consultation with persons or organisations who may be significantly affected by the guidelines.
Accreditation of product stewardship schemes
13 Application for accreditation
(1)
A scheme manager may apply to the Minister for accreditation of a product stewardship scheme.
(2)
The application must—
(a)
be made in writing in the prescribed manner (if any); and
(b)
include the prescribed information (if any); and
(c)
be accompanied by the prescribed fee (if any); and
(d)
identify how the scheme meets the requirements for accreditation under section 14; and
(e)
identify whether regulations under section 22 or 23 will be required to implement the scheme; and
(f)
include evidence of the agreement of the participants in the scheme (being the persons referred to in section 14(e)).
14 Requirements for accreditation
To qualify for accreditation, a product stewardship scheme must—
(a)
identify the scheme manager:
(b)
provide a description of the scope of the scheme, including the product or brand of product to which it applies:
(c)
set—
(i)
measurable waste minimisation, treatment, or disposal objectives for the product; and
(ii)
time frames for meeting the objectives:
(d)
list the classes of person involved in the design, manufacture, sale, use, servicing, collection, recovery, recycling, treatment, and disposal of the product:
(e)
list the persons who have agreed to participate in the scheme and assign responsibility to them for meeting the scheme’s objectives:
(f)
specify the arrangements for—
(i)
making decisions under the scheme:
(ii)
the control and overall operation of the scheme:
(iii)
keeping records and making reports under the scheme:
(g)
specify the scheme’s expiry date:
(h)
identify the processes for compliance and enforcement of any agreements between participants to the scheme:
(i)
provide for assessing the scheme’s performance and for reporting on its performance to the Minister:
(j)
set out a strategy for publication of the scheme:
(k)
set out how information will be provided to purchasers, users, and handlers of the product to which the scheme relates:
(l)
clearly outline how the scheme is to be funded.
15 Accreditation
(1)
The Minister must accredit a product stewardship scheme if he or she is satisfied that the scheme—
(a)
meets the requirements of section 14; and
(b)
is likely to meet the scheme’s objectives within the time frames set in the scheme; and
(c)
is likely to promote waste minimisation or reduce the environmental harm from disposing of the product to which the scheme relates without, in either case, causing greater environmental harm over the life cycle of the product; and
(d)
is consistent with New Zealand’s international obligations; and
(e)
if the scheme relates to a priority product, is consistent with any guidelines published under section 12.
(2)
Despite subsection (1)(e), the Minister may accredit a product stewardship scheme that is not consistent with any guidelines published under section 12 if, before accrediting the scheme, he or she has obtained and considered the advice of the Waste Advisory Board.
(3)
Before deciding whether to accredit a product stewardship scheme, the Minister may seek further information from—
(a)
the scheme manager; or
(b)
any other person who, in the Minister’s opinion, is likely to be significantly affected by the scheme.
(4)
As soon as practicable after deciding whether to accredit a product stewardship scheme, the Minister must provide to the scheme manager written notice of the decision and the reasons for the decision.
16 Variation of accredited scheme
(1)
An accredited scheme may be varied.
(2)
However, no variation to an accredited scheme has any effect until the scheme, as varied, is re-accredited under section 15.
(3)
Subsection (2) does not apply if the variation to the scheme is a variation that will not adversely affect the scheme’s objectives or its ability to meet those objectives within the time frames set in the scheme but, if the variation adds 1 or more participants to the scheme or adds 1 or more brands of product to which the scheme relates, the scheme manager must notify the Minister, in writing, of the addition not more than 5 working days after the scheme is varied.
17 Expiry of accreditation
(1)
The accreditation of a product stewardship scheme expires on the earlier of the following dates:
(a)
the date specified in the scheme as its expiry date:
(b)
7 years after the date that notice is given under section 15(4).
(2)
However, the accreditation of an existing product stewardship scheme continues if,—
(a)
not later than 6 months before its expiry date, the scheme manager applies for accreditation of a scheme to replace it; and
(b)
at the expiry date, the application for the replacement scheme has not been determined by the Minister under section 15.
(3)
A product stewardship scheme to which subsection (2) applies continues as an accredited scheme until the date that the replacement scheme is accredited or the application concerned is declined by the Minister under section 15.
18 Revocation of accreditation
(1)
The Minister may revoke the accreditation of an accredited scheme if—
(a)
he or she is satisfied that—
(i)
reasonable steps are not being taken to implement the scheme; and
(ii)
the scheme’s objectives are not being met or are not likely to be met within the time frames set out in the scheme; or
(b)
he or she is satisfied that the reporting requirements for the scheme are not being complied with; or
(c)
the product to which the scheme relates was not a priority product at the date of the scheme’s accreditation, but has subsequently been declared a priority product, and he or she is satisfied that the objectives of the scheme are no longer adequate in relation to the product.
(2)
The Minister must not revoke the accreditation of an accredited scheme unless he or she—
(a)
notifies the scheme manager in writing; and
(b)
provides a reasonable opportunity for the scheme manager to make submissions on whether the scheme’s accreditation should be revoked.
19 Accredited scheme subject to other laws
An accredited scheme applies subject to any other enactment, the general law, and any bylaws (within the meaning of the Local Government Act 2002).
Monitoring of accredited schemes
20 Monitoring of accredited schemes
The Secretary may—
(a)
monitor the performance of an accredited scheme; and
(b)
recover the costs of doing so from the scheme manager (on behalf of the scheme) as a charge in the prescribed manner.
21 Monitoring costs recoverable as debt if unpaid
Any charge payable to the Secretary under section 20 is recoverable as a debt by the Secretary in a court of competent jurisdiction.
Regulations in relation to priority products, accredited schemes, products, materials, and waste
22 Regulations in relation to priority products and accredited schemes
(1)
The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for 1 or more of the following purposes:
(a)
prohibiting the sale of a priority product, except in accordance with an accredited scheme:
(b)
prescribing the manner in which applications for accreditation of a product stewardship scheme must be made:
(c)
prescribing the information to be included in an application for accreditation:
(d)
prescribing the fee payable for an application for accreditation (which may include the reasonable costs in assessing and accrediting a scheme):
(e)
prescribing the charges payable to the Secretary for the monitoring of an accredited scheme.
(2)
Before recommending the making of regulations under subsection (1)(a), the Minister must—
(a)
obtain and consider the advice of the Waste Advisory Board; and
(b)
be satisfied that—
(i)
there has been adequate consultation with persons or organisations who may be significantly affected by the regulations; and
(ii)
without the regulations, it is likely that either—
(A)
the objectives of any relevant accredited scheme cannot be met; or
(B)
the matters referred to in section 12(3)(b) or (d) that are included in any guidelines published under section 12 cannot be met; and
(iii)
the benefits expected from implementing the regulations exceed the costs expected from implementing the regulations; and
(iv)
the regulations are consistent with New Zealand’s international obligations.
(3)
For the purposes of subsection (1)(e), regulations may provide for charges payable to the Secretary using 1 or more of the following methods:
(a)
fixed charges:
(b)
charges fixed on an hourly or other unit basis:
(c)
estimated charges paid before any monitoring, followed by reconciliation and an appropriate payment or refund after the monitoring:
(d)
actual and reasonable charges (having regard to the direct and indirect costs of any monitoring):
(e)
refundable or non-refundable deposits paid before any monitoring of an accredited scheme.
(4)
However, if more than 1 charging method is provided, the Secretary must use the method that he or she believes on reasonable grounds to be the most suitable and equitable in the circumstances concerned.
23 Regulations in relation to products (whether or not priority products), materials, and waste
(1)
The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for 1 or more of the following purposes:
Control or prohibition on disposal, sale, etc
(a)
controlling or prohibiting the disposal, or anything done for the purpose of disposing, of products or waste:
(b)
controlling or prohibiting the manufacture or sale of products that contain specified materials:
Take-back services, fees, and refundable deposits
(c)
requiring specified classes of person to provide a take-back service for products, and prescribing requirements for—
(i)
the take-back service; and
(ii)
the reuse, recycling, recovery, treatment, or disposal of products taken back:
(d)
setting fees payable for the management of a product and specifying—
(i)
the class or classes of person who must pay the fee; and
(ii)
the stages in the life of the product where the fee must be paid; and
(iii)
the purposes to which the fee must be applied:
(e)
requiring specified classes of person to charge a deposit on the sale of a product, requiring the deposits to be refunded in specified circumstances, and prescribing requirements for the application of any deposits not refunded:
Labelling of products
(f)
prescribing requirements for the labelling of a product:
Quality standards
(g)
for any product or material that has become waste, prescribing standards to be met when reusing, recycling, or recovering the product or material:
(h)
requiring specified persons or specified classes of person to ensure that the standards prescribed under paragraph (g) are met:
Information to be collected and provided
(i)
requiring specified persons or specified classes of person to collect, and provide to the Secretary, information about any requirements imposed in regulations made under paragraph (a), (b), (c), (d), or (e):
Miscellaneous
(j)
providing for any other matter contemplated by this Part.
(2)
The Minister must not recommend the making of regulations—
(a)
under subsection (1)(a), unless he or she is satisfied that there is adequate infrastructure and facilities in place to provide a reasonably practicable alternative to disposal or, if not, that a reasonable time is provided before the regulations come into force for adequate infrastructure and facilities to be put in place:
(b)
under subsection (1)(b), unless a reasonably practicable alternative to the specified materials is available.
(3)
Before recommending the making of regulations under subsection (1), the Minister must—
(a)
obtain and consider the advice of the Waste Advisory Board; and
(b)
be satisfied that—
(i)
there has been adequate consultation with persons or organisations who may be significantly affected by the regulations; and
(ii)
the benefits expected from implementing the regulations exceed the costs expected from implementing the regulations; and
(iii)
the regulations are consistent with New Zealand’s international obligations.
New Zealand Customs Service to provide information about priority products
24 New Zealand Customs Service to provide information about priority products
(1)
The Secretary may request, in writing, the New Zealand Customs Service to provide to the Secretary any information that the New Zealand Customs Service holds about the importers and importation of priority products.
(2)
The New Zealand Customs Service must comply with a request as soon as practicable.
(3)
Information provided to the Secretary under this section may be used by the Secretary only for the purpose of administering and enforcing regulations made under this Part.
Part 3 Waste disposal levy
25 Purpose of Part
The purpose of this Part is to enable a levy to be imposed on waste disposed of to—
(a)
raise revenue for promoting and achieving waste minimisation; and
(b)
increase the cost of waste disposal to recognise that disposal imposes costs on the environment, society, and the economy.
Levy must be paid
26 Levy imposed on waste disposed of at disposal facility
(1)
A levy is imposed on waste disposed of at a disposal facility.
(2)
However, subsection (1) does not apply to waste disposed of at a disposal facility if—
(a)
the facility is exempted from the levy by regulations made under this Part; or
(b)
the waste concerned is exempted from the levy by regulations made under this Part.
(3)
For all purposes relating to the levy, disposal does not include the deposit of waste onto land if, not later than 6 months after its deposit (or any later time that the Secretary has agreed to in writing), the waste is—
(a)
reused or recycled; or
(b)
recovered or treated on the land and removed from the land for deposit elsewhere; or
(c)
removed from the land for any other reason.
27 Rate of levy
The levy is payable on the amount of waste disposed of at a disposal facility—
(a)
at the prescribed rate; or
(b)
if the rate is not prescribed, at the rate (exclusive of goods and services tax) of—
(i)
$10 per tonne; or
(ii)
$10 per unit of volume that, in accordance with regulations made under this Part, is considered equivalent to a tonne.
28 Operator of disposal facility must pay levy to levy collector
(1)
The operator of a disposal facility must pay the levy on waste disposed of at the facility.
(2)
The amount of levy payable must be calculated in accordance with regulations made under this Part.
(3)
The levy must be paid to the levy collector in the prescribed manner and at the prescribed times.
(4)
This section is subject to section 29.
29 Waiver of levy payment
The Secretary may waive, in writing, the requirement for an operator to pay any amount of levy, if satisfied that exceptional circumstances justify the waiver.
Distribution and spending of levy money
30 Secretary must distribute and spend levy money
The Secretary must distribute and spend all levy money received by—
(a)
paying any refunds to operators in accordance with regulations made under section 41(1)(k); and
(b)
paying shares to territorial authorities in accordance with sections 31 and 33; and
(c)
spending the remainder on 1 or more of the following:
(i)
collecting and administering the levy:
(ii)
funding projects that the Minister has approved for funding under section 38:
(iii)
administration costs relating to projects that the Minister has considered or approved for funding (for example, the costs of approving or declining funding or of auditing the projects).
31 Territorial authorities to receive share
(1)
The Secretary must pay each territorial authority a share of the total levy money collected in respect of a financial year.
(2)
A territorial authority’s share is calculated using the following formula:
| territorial authority’s share | = | (levy collected − levy refunded) |
× |
district’s population | |||||
| 2 | total population |
| where— | ||||
| levy collected | is the total levy money collected in respect of the financial year | |||
| levy refunded | is the total levy money refunded in respect of the financial year in accordance with regulations made under section 41(1)(k) | |||
| district’s population | is— | |||
| (a) | the population of the district of the territorial authority as shown by the census of population published most recently before the start of the financial year; or | |||
| (b) | if the district was constituted, or its boundaries were altered, after that census was published, the population of the district assessed by the Government Statistician as at the date of the district’s constitution or boundary alteration | |||
| total population | is the total of all districts’ populations. | |||
(3)
The territorial authority’s share must be paid to the territorial authority in the prescribed manner and at the prescribed times.
(4)
This section is subject to section 33.
32 Spending of levy money by territorial authorities
(1)
A territorial authority may spend the levy money it receives under section 31 only—
(a)
on matters to promote or achieve waste minimisation; and
(b)
in accordance with its waste management and minimisation plan.
(2)
When making a decision in relation to funding any matter to which subsection (1) applies, the territorial authority must consider the effects that the decision may have on any existing waste minimisation services, facilities, and activities (whether provided by the territorial authority or otherwise).
33 Secretary must retain levy money instead of paying territorial authority in certain situations
(1)
Despite section 31, the Secretary must retain levy money payable to a territorial authority if,—
(a)
at the time the payment is to be made, the territorial authority has not—
(i)
adopted a waste management and minimisation plan; or
(ii)
reviewed its waste management and minimisation plan under section 50, if a review was required before the time for payment; or
(b)
the Minister has directed the Secretary to retain the payment under section 37.
(2)
The Secretary must spend any money retained under subsection (1) in accordance with section 30(c).
Estimated levy and unpaid levy
34 Estimation of amount of levy payable
(1)
This section applies if the levy collector considers that an amount of levy payable by an operator under section 28 cannot be accurately calculated because the operator—
(a)
did not provide records or information in accordance with any prescribed requirement; or
(b)
provided records or information that the levy collector considers, on reasonable grounds, to be incomplete or incorrect.
(2)
The levy collector may,—
(a)
in the prescribed manner, estimate the amount of levy payable; and
(b)
make a written demand for the amount from the operator.
(3)
Once the written demand is made, the estimated amount must be treated as the correct amount of levy payable by the operator under section 28.
35 Interest on unpaid levy
(1)
If the operator of a disposal facility does not fully pay an amount of levy (the original amount) by the close of the due day for payment, the levy owing is to be treated as having been increased by an amount calculated daily using the following formula:
amount of increase = unpaid amount × prescribed rate
| where— | |||
| unpaid amount | is any part of the original amount that remains unpaid on the day of calculation | ||
| prescribed rate | has the same meaning as in section 87(3) of the Judicature Act 1908. | ||
(2)
Any amount of increase calculated under subsection (1) is not itself subject to an increase under that subsection.
36 Unpaid levy is debt
Any levy payable to a levy collector is recoverable as a debt by the levy collector in a court of competent jurisdiction.
Minister’s functions in relation to levy
37 Minister may direct Secretary to retain payment to territorial authority
The Minister may direct the Secretary to retain 1 or more payments of levy money to a territorial authority in respect of a financial year if he or she is satisfied that the territorial authority has not met any of the following requirements or standards in respect of the previous financial year:
(a)
the requirement to spend levy money in accordance with section 32:
(b)
a performance standard set by the Minister under section 49:
(c)
any prescribed requirement to provide records or information.
38 Minister may approve funding of projects to promote or achieve waste minimisation
(1)
The Minister may approve funding of any project to promote or achieve waste minimisation.
(2)
The Minister may approve funding of a project on any terms or conditions that he or she thinks fit.
(3)
In deciding whether to approve funding of a project, the Minister—
(a)
must consider any criteria notified under subsection (4); and
(b)
may consider any other matters that he or she thinks relevant.
(4)
The Minister may, by notice in the Gazette, set or vary criteria for approving funding of a project under this section.
(5)
Before setting or varying criteria, the Minister must obtain and consider the advice of the Waste Advisory Board.
39 Minister must review effectiveness of levy
(1)
The Minister must review the effectiveness of the levy—
(a)
not later than 2 years after the commencement of this Part; and
(b)
then at intervals of not more than 3 years after the last review.
(2)
In undertaking a review, the Minister—
(a)
must obtain and consider the advice of the Waste Advisory Board; and
(b)
must consider whether the amount of waste disposed of in New Zealand has decreased since the last review (or the commencement of this Part, in the case of the first review); and
(c)
must consider whether the amount of waste reused, recycled, or recovered in New Zealand has increased since the last review (or the commencement of this Part, in the case of the first review); and
(d)
may consider any other matters that he or she thinks relevant.
40 Minister may appoint levy collector
(1)
The Minister may, by notice in the Gazette,—
(a)
appoint a person (instead of the Secretary) to collect the levy from the operators of 1 or more disposal facilities; or
(b)
remove the person from that appointment.
(2)
The terms of appointment may permit the appointed person to retain part of the levy money collected as a collection fee.
(3)
Subject to subsection (2), an appointed person must—
(a)
pay any levy money collected into a separate trust account to be held on trust for the Secretary; and
(b)
pay the levy money to the Secretary upon request.
(4)
The levy money in the trust account is not available to pay any creditor of the appointed person (other than the Secretary) and is not liable to be attached or taken in execution at the instance of any such creditor.
(5)
A person who ceases to be an appointed levy collector must maintain the trust account concerned until all the levy the collector was appointed to collect is collected and paid to the Secretary.
Regulations in relation to waste disposal levy and related matters
41 Regulations in relation to waste disposal levy and related matters
(1)
The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for 1 or more of the following purposes:
Imposition of levy
(a)
prescribing any facility, or class of facility, at which waste is disposed of as a disposal facility for the purposes of this Act:
(b)
specifying any disposal facility, or class of disposal facility, that is exempt from the levy:
(c)
specifying the type, volume, or weight of any waste that is exempt from the levy, whether generally or in respect of 1 or more disposal facilities:
Rate of levy
(d)
specifying that a single levy rate applies, or different levy rates apply, to different disposal facilities, classes of disposal facility, or types of waste:
(e)
prescribing the rate of levy to apply to—
(i)
1 or more disposal facilities or classes of disposal facility; or
(ii)
1 or more types of waste:
Calculation and payment of levy
(f)
prescribing the manner in which the amount of levy payable by the operator of a disposal facility is calculated:
(g)
prescribing the manner in which, and the times at which, the operator of a disposal facility must pay the levy:
(h)
specifying when the operator of a disposal facility may be allowed more time to pay the levy, and any conditions that may apply to the payment:
(i)
allowing an operator who objects on conscientious or religious grounds to paying the levy in the prescribed manner to pay it in another manner:
(j)
prescribing the manner in which a levy collector may estimate the amount of levy payable by the operator of a disposal facility:
Distribution and spending of levy money
(k)
providing for the refund of all or part of a payment of levy money in any specific case or type of case:
(l)
prescribing the manner in which, and the times at which, the Secretary must pay a share of levy money to a territorial authority:
Miscellaneous
(m)
providing for any other matter contemplated by this Part.
(2)
Before recommending the making of regulations under subsection (1)(a), (b), (c), (d), or (e), the Minister must—
(a)
obtain and consider the advice of the Waste Advisory Board; and
(b)
be satisfied that there has been adequate consultation with persons or organisations who may be significantly affected by the regulations; and
(c)
consider the costs and benefits expected from implementing the regulations.
(3)
The Minister must not recommend the making of regulations under subsection (1)(b), (c), or (k) unless he or she is satisfied that exceptional circumstances justify the exemption or refund.
(4)
[Repealed](5)
[Repealed]Section 41(4): repealed, on 1 January 2016, by section 14 of the Legislation (Confirmable Instruments) Amendment Act 2015 (2015 No 120).
Section 41(5): repealed, on 1 January 2016, by section 14 of the Legislation (Confirmable Instruments) Amendment Act 2015 (2015 No 120).
41A Regulations under section 41(1)(e) are confirmable instruments
The explanatory note of regulations made under section 41(1)(e) must indicate that—
(a)
they are a confirmable instrument under section 47B of the Legislation Act 2012; and
(b)
they are revoked at a time stated in the note, unless earlier confirmed by an Act of Parliament; and
(c)
the stated time is the applicable deadline under section 47C(1)(a) or (b) of that Act.
Section 41A: inserted, on 1 January 2016, by section 14 of the Legislation (Confirmable Instruments) Amendment Act 2015 (2015 No 120).
Part 4 Responsibilities of territorial authorities in relation to waste management and minimisation
42 Territorial authorities to encourage effective and efficient waste management and minimisation
A territorial authority must promote effective and efficient waste management and minimisation within its district.
Compare: 1974 No 66 s 538
Waste management and minimisation plans
43 Waste management and minimisation plans
(1)
For the purposes of section 42, a territorial authority must adopt a waste management and minimisation plan.
(2)
A waste management and minimisation plan must provide for the following:
(a)
objectives and policies for achieving effective and efficient waste management and minimisation within the territorial authority’s district:
(b)
methods for achieving effective and efficient waste management and minimisation within the territorial authority’s district, including—
(i)
collection, recovery, recycling, treatment, and disposal services for the district to meet its current and future waste management and minimisation needs (whether provided by the territorial authority or otherwise); and
(ii)
any waste management and minimisation facilities provided, or to be provided, by the territorial authority; and
(iii)
any waste management and minimisation activities, including any educational or public awareness activities, provided, or to be provided, by the territorial authority:
(c)
how implementing the plan is to be funded:
(d)
if the territorial authority wishes to make grants or advances of money in accordance with section 47, the framework for doing so.
(3)
A territorial authority may amend its waste management and minimisation plan or revoke it and substitute a new plan.
(4)
A waste management plan adopted under Part 31 of the Local Government Act 1974 as at the commencement of this section must be treated as if it were a waste management and minimisation plan adopted under this section, and this Part applies to the plan accordingly.
44 Requirements when preparing, amending, or revoking plans
In preparing, amending, or revoking a waste management and minimisation plan, a territorial authority must—
(a)
consider the following methods of waste management and minimisation (which are listed in descending order of importance):
(i)
reduction:
(ii)
reuse:
(iii)
recycling:
(iv)
recovery:
(v)
treatment:
(vi)
disposal; and
(b)
ensure that the collection, transport, and disposal of waste does not, or is not likely to, cause a nuisance; and
(c)
have regard to the New Zealand Waste Strategy, or any government policy on waste management and minimisation that replaces the strategy; and
(d)
have regard to the most recent assessment undertaken by the territorial authority under section 51; and
(e)
use the special consultative procedure set out in section 83 of the Local Government Act 2002 and, in doing so, the most recent assessment undertaken by the territorial authority under section 51 must be notified with the statement of proposal.
45 Joint plans
Two or more territorial authorities may jointly prepare and adopt a waste management and minimisation plan for the whole or parts of their districts, and sections 43 and 44 apply accordingly, with all necessary modifications.
46 Funding of plans
(1)
A territorial authority is not limited to applying strict cost recovery or user pays principles for any particular service, facility, or activity provided by the territorial authority in accordance with its waste management and minimisation plan.
(2)
Without limiting subsection (1), a territorial authority may charge fees for a particular service or facility provided by the territorial authority that is higher or lower than required to recover the costs of the service or facility, or provide a service or facility free of charge, if—
(a)
it is satisfied that the charge or lack of charge will provide an incentive or disincentive that will promote the objectives of its waste management and minimisation plan; and
(b)
the plan provides for charges to be set in this manner.
Compare: 1974 No 66 s 544
47 Grants
(1)
If authorised to do so by its waste management and minimisation plan, a territorial authority may make grants or advances of money to any person, organisation, group, or body of persons for the purpose of promoting or achieving waste management and minimisation.
(2)
A grant or advance of money may be made on any terms or conditions that the territorial authority thinks fit, including that an advance of money is free of interest.
Compare: 1974 No 66 s 543
48 Governor-General may give directions to territorial authority
(1)
The Governor-General may, by Order in Council made on the recommendation of the Minister, direct a territorial authority to include, omit, or amend 1 or more provisions in its waste management and minimisation plan.
(2)
The Minister must not make a recommendation under subsection (1) unless he or she is satisfied that—
(a)
the territorial authority’s waste management and minimisation plan is inadequate to promote effective and efficient waste management and minimisation within its district; or
(b)
the proposed changes to the waste management and minimisation plan will achieve or assist in achieving the New Zealand Waste Strategy, or any government policy on waste management and minimisation that replaces the strategy.
(3)
A territorial authority must, as soon as practicable, amend its waste management and minimisation plan to give effect to a direction given to it under subsection (1).
(4)
Section 44 does not apply to an amendment to a waste management and minimisation plan made under this section.
49 Minister may set performance standards for territorial authorities
(1)
The Minister may, by notice in the Gazette, set performance standards for the implementation of waste management and minimisation plans.
(2)
A performance standard may apply generally, or to 1 or more territorial authorities.
Review of waste management and minimisation plans
50 Review of waste management and minimisation plan
(1)
A territorial authority must review its waste management and minimisation plan—
(a)
not later than 1 July 2012; and
(b)
then at intervals of not more than 6 years after the last review.
(2)
Before conducting a review, the territorial authority must make an assessment under section 51.
(3)
If, after the review, the territorial authority considers that the plan—
(a)
should be amended or revoked and a new plan substituted, it must act under section 44:
(b)
should continue without amendment, it must use the special consultative procedure set out in section 83 of the Local Government Act 2002 and, in doing so, notify the assessment with the statement of proposal.
51 Requirements for waste assessment
(1)
A waste assessment must contain—
(a)
a description of the collection, recycling, recovery, treatment, and disposal services provided within the territorial authority’s district (whether by the territorial authority or otherwise); and
(b)
a forecast of future demands for collection, recycling, recovery, treatment, and disposal services within the district; and
(c)
a statement of options available to meet the forecast demands of the district with an assessment of the suitability of each option; and
(d)
a statement of the territorial authority’s intended role in meeting the forecast demands; and
(e)
a statement of the territorial authority’s proposals for meeting the forecast demands, including proposals for new or replacement infrastructure; and
(f)
a statement about the extent to which the proposals will—
(i)
ensure that public health is adequately protected:
(ii)
promote effective and efficient waste management and minimisation.
(2)
An assessment is not required to contain any assessment in relation to individual properties.
(3)
Information is required for an assessment to the extent that the territorial authority considers appropriate, having regard to—
(a)
the significance of the information; and
(b)
the costs of, and difficulty in, obtaining the information; and
(c)
the extent of the territorial authority’s resources; and
(d)
the possibility that the territorial authority may be directed under the Health Act 1956 to provide the services referred to in that Act.
(4)
However, an assessment must indicate whether and, if so, to what extent, the matters referred to in subsection (3)(b) and (c) have impacted materially on the completeness of the assessment.
(5)
In making an assessment, the territorial authority must—
(a)
use its best endeavours to make a full and balanced assessment; and
(b)
consult the Medical Officer of Health.
Waste management and minimisation services, facilities, and activities
52 Waste management and minimisation services, facilities, and activities
(1)
A territorial authority may undertake, or contract for, any waste management and minimisation service, facility, or activity (whether the service, facility, or activity is undertaken in its own district or otherwise).
(2)
A territorial authority must exercise a power under subsection (1), and charge fees associated with the exercise of the power, in accordance with its waste management and minimisation plan.
Compare: 1974 No 66 s 540
53 Proceeds from activities and services must be used in implementing waste management and minimisation plan
A territorial authority may sell any marketable product resulting from any activity or service of the territorial authority carried out under this Part, but any proceeds of sale must be used in implementing its waste management and minimisation plan.
Collection and disposal of waste
54 Waste must be collected promptly, efficiently, and regularly
A territorial authority that provides a service that collects waste, or any person who provides a service that collects waste on behalf of a territorial authority, must do so promptly, efficiently, and at regular intervals.
Compare: 1974 No 66 s 540A
55 Health Protection Officer may serve notice on territorial authority for causing nuisance
(1)
A Health Protection Officer may serve notice on a territorial authority if—
(a)
the territorial authority provides a waste collection service to premises; and
(b)
he or she considers that—
(i)
the territorial authority has failed to collect waste from the premises promptly or efficiently; and
(ii)
the failure to do so is causing, or is likely to cause, a nuisance.
(2)
The notice must state—
(a)
the premises to which it relates; and
(b)
a description of the waste that needs to be collected from the premises; and
(c)
the time frame in which the Health Protection Officer expects the waste to be collected; and
(d)
that failure to comply with the notice is an offence; and
(e)
the Health Protection Officer’s name and contact details.
(3)
On receipt of a notice under subsection (1), the territorial authority must—
(a)
comply with the notice itself; or
(b)
if applicable, give the notice to the person providing the waste collection service to the premises on its behalf and direct the person to comply with the notice.
(4)
The Medical Officer of Health may collect and dispose of the waste concerned, and may recover the reasonable costs of doing so, as a debt due, from a territorial authority if the territorial authority, or any person collecting the waste on its behalf, fails to comply with a notice given under subsection (1).
(5)
In this section, Health Protection Officer means a person designated by the chief executive of the Ministry of Health as a Health Protection Officer under the Health Act 1956.
Bylaws
56 Bylaws
(1)
A territorial authority may make bylaws for 1 or more of the following purposes:
(a)
prohibiting or regulating the deposit of waste:
(b)
regulating the collection and transportation of waste:
(c)
regulating the manner of disposal of dead animals, including their short-term storage pending disposal:
(d)
prescribing charges to be paid for use of waste management and minimisation facilities provided, owned, or operated by the territorial authority:
(e)
prohibiting, restricting, or controlling access to waste management and minimisation facilities provided, owned, or operated by the territorial authority:
(f)
prohibiting the removal of waste intended for recycling from receptacles provided by the territorial authority by anyone other than—
(i)
the occupier of the property from which the waste in the receptacle has come; or
(ii)
a person authorised by the territorial authority to remove the waste.
(2)
A bylaw must not be inconsistent with the territorial authority’s waste management and minimisation plan.
(3)
Bylaws made under subsection (1)(b) may provide for the licensing of persons who carry out the collection and transportation of waste, and the conditions specified in the bylaws as conditions of the licences may include conditions requiring each licensee—
(a)
to provide a performance bond or security, or both, for the performance of the work licensed:
(b)
to provide to the territorial authority, at times or periods specified in the bylaws, reports setting out the quantity, composition, and destination of waste collected and transported by the licensee (for example, household waste to a disposal facility).
(4)
In subsection (3), persons—
(a)
includes commercial and non-commercial collectors and transporters of waste (for example, community groups and not-for-profit organisations); but
(b)
does not include individuals who collect and transport waste for personal reasons (for example, a person taking household garden waste to a landfill).
(5)
Despite anything to the contrary in the Local Government Act 2002, sections 151, 155, and 156 of that Act apply, with all necessary modifications, to any bylaw made under this section.
(6)
To avoid doubt,—
(a)
section 46 of this Act applies, but section 150(4) of the Local Government Act 2002 does not apply, to a territorial authority when making a bylaw under this section in relation to waste management and minimisation facilities provided, owned, or operated by the territorial authority:
(b)
the power of a territorial authority to make bylaws under this section is in addition to its power to make bylaws under the Local Government Act 2002:
(c)
subject to paragraph (a), this section does not limit any provisions of the Local Government Act 2002 that apply to a bylaw made under this section.
Compare: 1974 No 66 s 542
57 Crown bound by bylaws
(1)
The Crown is bound by any bylaw made by a territorial authority under section 56.
(2)
However, the Minister may, by written notice to the territorial authority concerned, exempt the Crown from any bylaw by which it is bound under subsection (1), if he or she is satisfied that the exemption is in the national interest.
(3)
If a notice is given under subsection (2), the Minister must, as soon as practicable after giving the notice, publish in the Gazette and present to the House of Representatives a copy of the notice.
58 Review of bylaws
(1)
A territorial authority must review a bylaw made by it under section 56—
(a)
not later than 10 years after the bylaw was made; and
(b)
then at intervals of not more than 10 years after the last review.
(2)
A territorial authority must review a bylaw to which section 64 applies—
(a)
not later than 1 July 2012; and
(b)
then at intervals of not more than 10 years after the last review.
(3)
For the purposes of subsections (1) and (2), sections 160 and 160A of the Local Government Act 2002 apply, with all necessary modifications.
59 Regulations in relation to bylaws
The Governor-General may, by Order in Council, make regulations for the following purposes:
(a)
prescribing offences against bylaws that are infringement offences under this Act:
(b)
prescribing infringement fees (not exceeding $1,000) for infringement offences:
(c)
prescribing the form of, and any additional particulars required in, infringement notices issued under section 74.
Relationship of this Part with Local Government Act 2002
60 Relationship of this Part with Local Government Act 2002
(1)
In exercising its powers and performing its duties under this Part, a territorial authority must comply with the Local Government Act 2002.
(2)
However, if a conflict arises between this Part and the Local Government Act 2002, this Part prevails.
Consequential and transitional provisions
61 Consequential repeal of Part 31 of Local Government Act 1974
Part 31 of the Local Government Act 1974 is consequentially repealed.
62 Sanitary services
(1)
The definition of sanitary services in section 124 of the Local Government Act 2002 is amended by omitting “(c),”
.
(2)
Section 128(3)(b) of the Local Government Act 2002 is repealed.
63 Waste management plans
(1)
Clause 3(1)(b) of Part 1 of Schedule 10 of the Local Government Act 2002 is amended by omitting “plan in force under section 539 of the Local Government Act 1974”
and substituting “and minimisation plan in force under section 43 of the Waste Minimisation Act 2008”
.
(2)
Clause 3(2) of Part 1 of Schedule 10 of the Local Government Act 2002 is amended by omitting “waste management plan”
in each place where it appears and substituting in each case “waste management and minimisation plan”
.
(3)
Clause 3(3) of Part 1 of Schedule 10 of the Local Government Act 2002 is amended by omitting “waste management plan”
and substituting “waste management and minimisation plan”
.
64 Bylaws made under Local Government Act 1974
(1)
Bylaws made under Part 31 of the Local Government Act 1974 that were in force immediately before the commencement of this section are deemed to be validly made under section 56 of this Act, and continue in force accordingly, if validly made under the Local Government Act 1974.
(2)
Legal proceedings in relation to bylaws continued by subsection (1) that are pending by or against a territorial authority on the commencement of this section may be carried on, completed, enforced, or defended by or against the territorial authority as if this Act had not been passed.
Part 5 Offences and enforcement
Offences
65 Offences
(1)
The following persons commit an offence and are liable on conviction to a fine not exceeding $100,000:
(a)
a producer who contravenes regulations made under section 22(1)(a):
(b)
any person (other than a producer) who knowingly contravenes regulations made under section 22(1)(a):
(c)
a person who contravenes regulations made under section 23(1)(c), (d), (e), (f), or (i):
(d)
a person who knowingly contravenes regulations made under section 23(1)(a), (b), (g), or (h):
(e)
a person who contravenes regulations made under section 86(1)(a) or (b):
(f)
a person who, in providing records or other information required by regulations made under section 23(1)(i) or 86(1)(a), (b), or (c), knowingly—
(i)
supplies false or misleading information; or
(ii)
makes any material omission.
(2)
A territorial authority that fails to comply with section 55(3) commits an offence and is liable on conviction to a fine not exceeding $20,000.
(3)
The following persons commit an offence and are liable on conviction to a fine not exceeding $5,000:
(a)
a person who intentionally prevents an enforcement officer or auditor from carrying out his or her statutory functions or duties; or
(b)
a person who—
(i)
refuses to give information when required to do so by an enforcement officer or auditor acting under section 79; or
(ii)
intentionally supplies false or misleading information to an enforcement officer or an auditor acting under section 79; or
(c)
a person who incites any other person to do an act referred to in paragraph (a) or (b).
(4)
A territorial authority convicted of an offence under subsection (2) is liable, in addition to the penalty for the offence, for any reasonable costs incurred by the Medical Officer of Health in collecting and disposing of the waste to which the offence relates.
(5)
Costs under subsection (4) must be assessed by the court.
Section 65(1): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Section 65(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Section 65(3): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Section 65(3)(b)(i): amended, on 1 October 2012, by section 306(1) of the Search and Surveillance Act 2012 (2012 No 24).
Section 65(3)(b)(ii): amended, on 1 October 2012, by section 306(1) of the Search and Surveillance Act 2012 (2012 No 24).
66 Offences against bylaws
Every person commits an offence who breaches a bylaw made under section 56 and is liable on conviction to a fine not exceeding $20,000.
Section 66: amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
67 Additional penalty for contravention involving commercial gain
(1)
If a person is convicted of an offence under section 65, the court may, on the application of the Secretary or the territorial authority, as the case may be, in addition to any penalty that the court may impose under that section, order the person to pay an amount not exceeding the value of any commercial gain resulting from the contravention, if the court is satisfied that the contravention occurred in the course of producing a commercial gain.
(2)
The value of any gain must be assessed by the court, and any amount ordered to be paid is recoverable in the same manner as a fine.
(3)
The standard of proof in proceedings under this section is the standard of proof that applies in civil proceedings.
Strict liability and defences
68 Strict liability
In any prosecution for an offence specified in section 65(1)(a), (c), or (e), 65(2), or 66, it is not necessary to prove that the defendant intended to commit the offence.
69 Defences
(1)
It is a defence to an offence against this Act, or a bylaw made under section 56, if the court is satisfied—
(a)
that—
(i)
the act or omission giving rise to the offence was necessary—
(A)
to save or protect life or health or prevent injury; or
(B)
to prevent serious damage to property; or
(C)
to avoid actual or likely significant harm to the environment; and
(ii)
the conduct of the defendant was reasonable in the circumstances; and
(iii)
the effects of the act or omission were adequately remedied or mitigated by the defendant after the offence occurred; or
(b)
that—
(i)
the act or omission giving rise to the offence was due to an action or event beyond the control of the defendant; and
(ii)
the action or event could not reasonably have been foreseen or prevented by the defendant; and
(iii)
the effects of the defendant’s act or omission were adequately remedied or mitigated by the defendant after the offence occurred.
(2)
It is a defence to an offence against section 65(1)(a), (c), or (e) if the court is satisfied that—
(a)
the defendant took all reasonable steps to prevent or stop the commission of the offence; and
(b)
the effects of the defendant’s act or omission giving rise to the offence were adequately remedied or mitigated by the defendant after the offence occurred.
Liability of principals for acts of agents
70 Liability of principals for acts of agents
(1)
The consequence specified in subsection (2) applies if a person (person A) commits an offence against this Act while acting as an agent (including a contractor) or employee of another person (person B).
(2)
Person B is liable under this Act in the same manner and to the same extent as if person B had personally committed the offence.
(3)
The liability of person B under subsection (2) is without prejudice to the liability of person A.
(4)
If any proceedings are brought by virtue of subsection (2), it is a defence if person B proves,—
(a)
in the case of a natural person (including a partner in a firm), that—
(i)
he or she did not know nor could reasonably be expected to have known that the offence was to be or was being committed; or
(ii)
he or she took all reasonable steps to prevent the commission of the offence:
(b)
in the case of a body corporate, that—
(i)
neither the directors nor any person involved in the management of the body corporate knew or could reasonably be expected to have known that the offence was to be or was being committed; or
(ii)
the body corporate took all reasonable steps to prevent the commission of the offence.
(5)
If a body corporate is convicted of an offence against this Act, every director and every person involved in the management of the body corporate is guilty of the same offence if it is proved—
(a)
that the act or omission that constituted the offence took place with that person’s authority, permission, or consent; or
(b)
that he or she knew or could reasonably have been expected to know that the offence was to be or was being committed and failed to take all reasonable steps to prevent or stop it.
Time for filing charge
Heading: replaced, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
71 Time for filing charge
Despite anything to the contrary in section 25 of the Criminal Procedure Act 2011,—
(a)
the limitation period in respect of an offence against this Act ends on the date that is 12 months after the date on which the matter giving rise to the charge first became known, or should have become known, to the person who commences the proceedings; and
(b)
the limitation period in respect of an offence against a bylaw made under section 56 ends on the date that is 6 months after the date on which the matter giving rise to the charge first became known, or should have become known, to the territorial authority that commences the proceedings.
Section 71: replaced, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Injunctions
72 Injunctions restraining commission of offence under section 65(2)
(1)
A District Court may, on the application of the Medical Officer of Health, grant an injunction restraining a territorial authority from committing an offence against section 65(2).
(2)
An injunction may be granted under subsection (1)—
(a)
despite anything in any other enactment:
(b)
whether or not proceedings in relation to the offence have been commenced:
(c)
if a person is convicted of the offence,—
(i)
in substitution for, or in addition to, any other penalty; or
(ii)
in subsequent proceedings.
Infringement offences
73 Proceedings for infringement offences
A person who is alleged to have committed an infringement offence may either—
(a)
be proceeded against by filing a charging document under section 14 of the Criminal Procedure Act 2011; or
(b)
be served with an infringement notice under section 74.
Section 73(a): replaced, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
74 Issue and service of infringement notices
(1)
An infringement notice may be issued to a person if an enforcement officer—
(a)
observes the person committing an infringement offence; or
(b)
has reasonable cause to believe that an infringement offence is being or has been committed by the person.
(2)
An infringement notice may be served—
(a)
by an enforcement officer (not necessarily the person who issued the notice) personally delivering it (or a copy of it) to the person alleged to have committed the infringement offence; or
(b)
by post addressed to the person’s last known place of residence or business.
(3)
An infringement notice sent to a person under subsection (2)(b) must be treated as having been served on the person when it was posted.
(4)
An infringement notice must be in the prescribed form and must contain the following particulars:
(a)
details of the alleged infringement offence sufficient to fairly inform a person of the time, place, and nature of the alleged offence:
(b)
the amount of the infringement fee specified for the offence:
(c)
the time within which the infringement fee must be paid:
(d)
the address of the place at which the infringement fee must be paid:
(e)
a summary of section 21(10) of the Summary Proceedings Act 1957:
(f)
a statement that the person served with the notice has a right to request a hearing:
(g)
a statement of what will happen if the person served with the notice neither pays the infringement fee nor requests a hearing:
(h)
any other particulars that are prescribed.
(5)
If an infringement notice has been served under this section,—
(a)
proceedings in respect of the offence to which the notice relates may be commenced in accordance with section 21 of the Summary Proceedings Act 1957; and
(b)
the provisions of that section apply with all necessary modifications.
Section 74(3): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
75 Entitlement to infringement fees
A territorial authority may retain the infringement fees received by it for any infringement offences resulting from infringement notices issued by enforcement officers appointed by the territorial authority.
Enforcement officers
76 Enforcement officers
(1)
The Secretary may appoint—
(a)
a person to be an enforcement officer for the purposes of ensuring compliance with regulations made under this Act (except any regulations made under section 23(1)(a)); or
(b)
an auditor to be an enforcement officer for the purposes of exercising the power of entry under section 79(1)(a) in relation to an audit.
(2)
A territorial authority may appoint a person to be an enforcement officer in its district—
(a)
for the purposes of ensuring compliance with any regulations made under section 23(1)(a):
(b)
for the purposes of ensuring compliance with any bylaw made by the territorial authority under section 56.
(3)
A person must not be appointed as an enforcement officer unless the person has appropriate experience, technical competence, and qualifications relevant to the area of responsibilities proposed to be allocated to that person.
(4)
The Secretary or the territorial authority, as the case may be, must supply each enforcement officer with a warrant that states—
(a)
the full name of the person; and
(b)
the powers conferred on the person under this Act.
(5)
An enforcement officer who holds a warrant issued under this section must, on the termination of his or her appointment, surrender the warrant to the Secretary or the territorial authority, as the case may be.
Enforcement officer powers
77 Exercise of powers
[Repealed]Section 77: repealed, on 1 October 2012, by section 306(2) of the Search and Surveillance Act 2012 (2012 No 24).
78 Power to require certain information
[Repealed]Section 78: repealed, on 1 October 2012, by section 306(2) of the Search and Surveillance Act 2012 (2012 No 24).
79 Power to inspect property and obtain information
(1)
An enforcement officer may, if he or she believes on reasonable grounds that an offence against this Act or a bylaw made under section 56 has been or is being committed,—
(a)
enter any land, building, or place at any reasonable time:
(b)
inspect and examine any property and any books, accounts, records, or documents (including records or documents held in electronic or any other form):
(c)
require any person to produce any books, accounts, records, or documents (including records or documents held in electronic or any other form) in that person’s possession or under that person’s control, and allow copies of or extracts from those books, accounts, records, or documents to be made or taken.
(2)
Before exercising the power in subsection (1)(a), the officer must, if practicable, give reasonable notice to the occupier of the land, building, or place of the intention to exercise the power, unless the giving of notice would defeat the purpose of the entry.
(2A)
The provisions of Part 4 of the Search and Surveillance Act 2012 (except subpart 3 and sections 118 and 119) apply.
(3)
This section is subject to section 80.
Section 79(2A): inserted, on 1 October 2012, by section 306(3) of the Search and Surveillance Act 2012 (2012 No 24).
80 Consent or warrant required to inspect dwellinghouse or marae
(1)
An enforcement officer may not exercise the power of entry under section 79(1)(a) in relation to a dwellinghouse or marae—
(a)
except with the consent of the occupier of the dwellinghouse or marae; or
(b)
unless—
(i)
authorised to do so by a warrant issued under subsection (2); and
(ii)
when exercising the power, the enforcement officer is accompanied by a constable.
(2)
An issuing officer (within the meaning of section 3 of the Search and Surveillance Act 2012) may, on the application of an enforcement officer made in the manner provided for an application for a search warrant in subpart 3 of Part 4 of that Act, issue a warrant authorising the enforcement officer to enter the dwellinghouse or marae specified in the application.
(3)
The issuing officer may issue a warrant under subsection (2)—
(a)
only if he or she is satisfied that—
(i)
the proposed entry is necessary for the purposes of section 79(1)(a); and
(ii)
the enforcement officer has taken all reasonable steps to obtain the consent of the occupier to the proposed entry.
(b)
[Repealed](3A)
The provisions of Part 4 of the Search and Surveillance Act 2012 (except sections 118 and 119) apply as if a warrant issued under subsection (2) were a search warrant.
(4)
In this section,—
dwellinghouse—
(a)
means any building or any part of a building to the extent that it is occupied as a residence; and
(b)
in relation to a homeworker who works in a building that is not wholly occupied as a residence, excludes any part of the building not occupied as a residence
marae includes—
(a)
the buildings associated with a marae, for example, the wharenui (meeting house), the wharekai (dining room), and ablution blocks; and
(b)
the land on which the buildings are situated.
Section 80(1)(b)(ii): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).
Section 80(2): replaced, on 1 October 2012, by section 306(4) of the Search and Surveillance Act 2012 (2012 No 24).
Section 80(3): amended, on 1 October 2012, by section 306(5) of the Search and Surveillance Act 2012 (2012 No 24).
Section 80(3)(a)(ii): amended, on 1 October 2012, by section 306(6) of the Search and Surveillance Act 2012 (2012 No 24).
Section 80(3)(b): repealed, on 1 October 2012, by section 306(7) of the Search and Surveillance Act 2012 (2012 No 24).
Section 80(3A): inserted, on 1 October 2012, by section 306(8) of the Search and Surveillance Act 2012 (2012 No 24).
81 Seizure of property not on private land
(1)
An enforcement officer may seize and impound property that is not on private land if—
(a)
the property is materially involved in the commission of an offence; and
(b)
it is reasonable in the circumstances to seize and impound the property; and
(c)
the property is in possession of a person at the time the officer proposes to seize and impound it, and before seizing and impounding it, the officer—
(i)
directs (orally or in writing) the person committing the offence to stop committing the offence; and
(ii)
advises (orally or in writing) the person committing the offence that, if he or she does not stop committing the offence, the enforcement officer has the power to seize and impound the property; and
(iii)
provides the person with a reasonable opportunity to stop committing the offence.
(2)
As soon as practicable after seizing and impounding property, an enforcement officer must give notice—
(a)
to the person in possession of the property at the time it was seized and impounded; or
(b)
to any person who the enforcement officer can ascertain is the owner of, or has an interest in, the property, if paragraph (a) does not apply.
(3)
A notice given in accordance with subsection (2)(b) must be delivered, or sent by registered mail, not later than 7 working days after the property concerned was seized.
(4)
A notice must—
(a)
include a description of the property seized; and
(b)
state the date and time that the property was seized; and
(c)
state that the property was seized under this section; and
(d)
state the name of the enforcement officer who seized the property; and
(e)
include the address of the place where inquiries can be made in relation to the property.
(5)
In this section and section 82, offence—
(a)
means an offence against this Act; and
(b)
includes an offence against a bylaw.
82 Seizure of property from private land
(1)
An issuing officer (within the meaning of section 3 of the Search and Surveillance Act 2012) may issue a warrant authorising an enforcement officer to enter private land and seize and impound property materially involved in the commission of an offence.
(2)
A warrant may be issued only if—
(a)
the application for it is made in the manner provided for an application for a search warrant in subpart 3 of Part 4 of the Search and Surveillance Act 2012; and
(b)
the issuing officer is satisfied that—
(i)
the property is materially involved in the commission of an offence; and
(ii)
it is reasonable in the circumstances for the property to be seized; and
(iii)
the enforcement officer has—
(A)
directed the person committing the offence to stop committing the offence; and
(B)
advised the person that, if he or she fails to do so, the officer intends to apply for a warrant; and
(C)
given the person committing the offence a reasonable opportunity to stop committing the offence.
(3)
The provisions of Part 4 of the Search and Surveillance Act 2012 (except sections 118 and 119) apply as if a warrant issued under subsection (1) were a search warrant.
(4)
An enforcement officer executing a warrant issued under this section must be accompanied by a constable.
Section 82(1): amended, on 1 October 2012, by section 307(1) of the Search and Surveillance Act 2012 (2012 No 24).
Section 82(2)(a): amended, on 1 October 2012, by section 307(2) of the Search and Surveillance Act 2012 (2012 No 24).
Section 82(2)(b): amended, on 1 October 2012, by section 307(3) of the Search and Surveillance Act 2012 (2012 No 24).
Section 82(3): replaced, on 1 October 2012, by section 307(4) of the Search and Surveillance Act 2012 (2012 No 24).
Section 82(4): inserted, on 1 October 2012, by section 307(4) of the Search and Surveillance Act 2012 (2012 No 24).
83 Conditions for exercise of warrant to seize property on private land
[Repealed]Section 83: repealed, on 1 October 2012, by section 307(5) of the Search and Surveillance Act 2012 (2012 No 24).
84 Return of property seized and impounded
(1)
The owner of property that has been seized and impounded under section 81, or the person from whom the property was seized, may request the Secretary or the territorial authority concerned, as the case may be, to return the property.
(2)
The Secretary or the territorial authority must return the property if—
(a)
the property is not likely to be involved in the offence for which it was seized; and
(b)
the owner or person has paid, or tenders with the request for payment of, the costs of the Secretary or the territorial authority in seizing, impounding, transporting, and storing the property.
(3)
If the Secretary or the territorial authority refuses to return the property, the owner or person from whom it was seized may apply to a District Court to review the Secretary’s or the territorial authority’s decision.
(4)
The District Court may—
(a)
confirm the Secretary’s or the territorial authority’s decision; or
(b)
order that the property be returned.
Section 84(1): amended, on 1 October 2012, by section 307(6) of the Search and Surveillance Act 2012 (2012 No 24).
85 Power to dispose of property seized and impounded under section 81
(1)
The Secretary or a territorial authority, as the case may be, may dispose of property seized or impounded under section 81 that has not been returned within 6 months after it was seized and impounded.
(2)
The Secretary or the territorial authority must not dispose of property before giving the owner of the property and the person it was seized from not less than 14 working days’ notice of his, her, or its intention to do so.
(3)
The Secretary or the territorial authority may dispose of the property by way of sale or otherwise as it thinks fit.
(4)
Any proceeds from the disposal of the property must be applied to pay,—
(a)
first, the costs incurred in seizing, impounding, transporting, and storing the property:
(b)
secondly, the costs of disposing of the property:
(c)
thirdly, any surplus to the owner of the property or the person from whom it was seized.
Section 85 heading: amended, on 1 October 2012, by section 307(7) of the Search and Surveillance Act 2012 (2012 No 24).
Section 85(1): amended, on 1 October 2012, by section 307(8) of the Search and Surveillance Act 2012 (2012 No 24).
Part 6 Reporting and audits
Reporting
86 Regulations in relation to records, information, and reports
(1)
The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for 1 or more of the following purposes:
Information from operator of disposal facility
(a)
requiring the operator of a disposal facility to keep, and provide to the Secretary and any appointed levy collector, records and information to enable amounts of levy payable by the operator to be accurately calculated:
Information from any class of person
(b)
requiring any class of person to keep, and provide to the Secretary, records and information to assist the Secretary to compile statistics in order to—
(i)
measure progress in waste management and minimisation:
(ii)
report on the state of New Zealand’s environment:
(iii)
assess New Zealand’s performance in waste minimisation and decreasing waste disposal:
(iv)
identify improvements needed in infrastructure for waste minimisation:
Information from territorial authority
(c)
requiring a territorial authority to keep, and provide to the Secretary each year, records and information about the territorial authority’s—
(i)
spending of levy money; and
(ii)
performance in achieving waste minimisation with the services, facilities, and activities provided or funded in accordance with its waste management and minimisation plan; and
(iii)
performance as measured against any performance standards set by the Minister under section 49:
Miscellaneous
(d)
prescribing the form and manner in which, and the times at which, the records and information referred to in paragraph (a), (b), or (c) must be kept or provided:
(e)
prescribing requirements for a person to verify that records and information are correct before providing them under paragraph (a), (b), or (c):
(f)
providing for any other matter contemplated by this Part.
(2)
Before recommending the making of regulations under subsection (1), the Minister must—
(a)
obtain and consider the advice of the Waste Advisory Board; and
(b)
be satisfied that there has been adequate consultation with persons or organisations who may be significantly affected by the regulations; and
(c)
consider the costs and benefits expected from implementing the regulations.
(3)
Before recommending the making of regulations under subsection (1)(b), the Minister must also consult the Government Statistician.
Audits
87 Secretary may require audit
(1)
The Secretary may appoint, in writing, 1 or more auditors to conduct an audit under section 88.
(2)
None of the following persons may be appointed as an auditor:
(a)
a person who may be audited under section 88, or the person’s officers or employees; or
(b)
a person with a conflict of interest in respect of the audit for which the auditor is to be appointed.
88 Audit in respect of certain matters relating to facility or person
(1)
An auditor may audit the following facilities or persons for the purpose of obtaining, and reporting to the Secretary on, information about the matters specified in relation to the facility or person:
(a)
a disposal facility, or its operator, in respect of—
(i)
payment of the levy by the operator:
(ii)
compliance by the operator with any prescribed requirement to keep or provide records or other information:
(b)
any person, in respect of the person’s compliance with any prescribed requirement to keep or provide records or other information:
(c)
an appointed levy collector, in respect of the collection of levy that the collector is appointed to collect:
(d)
a territorial authority that receives levy money, in respect of the spending of the levy money:
(e)
any person who is paid levy money under section 30(c)(ii), in respect of the spending of the levy money:
(f)
the scheme manager of an accredited scheme, or any person who has agreed to participate in the scheme, in respect of their compliance with the scheme’s requirements to keep records or make reports:
(g)
any person, in respect of the person’s compliance with regulations made under section 22(1)(a) or 23.
(2)
For the purposes of subsection (1), an auditor may exercise—
(a)
the power of entry under section 79(1)(a) only if appointed an enforcement officer under section 76(1)(b); or
(b)
the powers of an enforcement officer under section 79(1)(b) or (c), despite not being an enforcement officer, but must produce evidence of his or her identity and appointment as an auditor whenever reasonably required to do so.
(3)
An auditor must not disclose to any person information obtained in the exercise of the auditor’s powers, except—
(a)
in a prosecution under this Act; or
(b)
in an action for the recovery of any amount due under this Act; or
(c)
to the Secretary, the Minister, or a person authorised by the Secretary or the Minister to receive the information.
Part 7 Waste Advisory Board
89 Establishment of Waste Advisory Board
This section establishes the Waste Advisory Board.
90 Function of Board
(1)
The function of the Board is to provide advice to the Minister upon request, including advice about—
(a)
declaring a product to be a priority product (under section 9(3)(a)):
(b)
making guidelines about the contents and expected effects of product stewardship schemes for priority products (under section 12(4)(a)):
(c)
accrediting a product stewardship scheme that is not consistent with any guidelines published under section 12 (under section 15(2)):
(d)
recommending the making of regulations prohibiting the sale of a priority product except in accordance with an accredited scheme (under section 22(2)(a)):
(e)
recommending the making of regulations in relation to products (whether or not priority products), materials, and waste (under section 23(3)(a)):
(f)
setting or varying criteria for approving funding of a project (under section 38(5)):
(g)
reviewing the effectiveness of the levy (under section 39(2)(a)):
(h)
recommending the making of regulations in relation to the imposition of the waste disposal levy or the rate of the levy (under section 41(2)(a)):
(i)
recommending the making of regulations in relation to records, information, and reports (under section 86(2)(a)).
(2)
The advice is to relate to waste minimisation or the functions of the Secretary or the Minister under this Act.
(3)
The Board must provide advice within terms of reference set by the Minister.
91 Terms of reference
(1)
The Minister must, by written notice to the Board, set terms of reference for the advice to be provided under section 90.
(2)
The Minister may, by written notice to the Board, vary the terms of reference at any time.
92 Minister to appoint members to Board
(1)
The Minister must appoint at least 4, but not more than 8, members to the Board.
(2)
The Minister must appoint 1 member as the chairperson of the Board.
(3)
The Minister may reappoint a member for a further term or terms.
(4)
An appointment must be made by written notice to the person concerned.
93 How members appointed
(1)
The Minister must comply with this section in appointing or reappointing members.
(2)
The Minister must request nominations for members of the Board, and allow 1 month to receive nominations, by giving public notice—
(a)
in the Gazette; and
(b)
in daily newspapers circulating in Auckland, Hamilton, Wellington, Christchurch, and Dunedin; and
(c)
on a website maintained by, or on behalf of, the Ministry for the Environment.
(3)
However, the Minister may appoint a person as a member of the Board whether or not he or she receives a nomination for the person under subsection (2).
(4)
The Minister must consult the Minister of Māori Affairs before appointing any member to the Board.
(5)
In appointing members, the Minister must consider the need for the Board to have available to it, from its members, knowledge, skill, and experience relating to—
(a)
this Act; and
(b)
matters that are likely to come before the Board; and
(c)
community projects for waste minimisation; and
(d)
industry, including the commercial waste industry; and
(e)
local government; and
(f)
tikanga Māori.
(6)
The Minister must notify an appointment in the Gazette as soon as practicable after appointing the member to the Board.
94 Term of office of members
(1)
A member of the Board holds office for a term of 3 years, or any shorter term stated in his or her notice of appointment.
(2)
A member continues in office despite the expiry of the member’s term of appointment until—
(a)
a successor is appointed; or
(b)
the Minister gives written notice to the member that the member is not to be reappointed and no successor is to be appointed at that time.
(3)
A member may resign from office by giving written notice to the Minister.
95 Removal of members
(1)
The Minister may remove a member of the Board from office at any time, for just cause.
(2)
The removal must be made by written notice to the member stating the reasons for the removal.
(3)
The Minister must notify the removal in the Gazette as soon as practicable after giving the notice to the member.
(4)
In subsection (1), just cause includes misconduct, inability to perform the functions of office, neglect of duty, and breach of duty.
96 No compensation for loss of office
A member of the Board is not entitled to any compensation or other payment or benefit relating to his or her ceasing, for any reason, to hold office as a member.
97 Fees and expenses of members
(1)
A member of the Board is entitled to be—
(a)
paid fees at a rate set by the Minister, in accordance with the fees framework; and
(b)
reimbursed for actual and reasonable travelling and other expenses incurred in carrying out the member’s office, in accordance with the fees framework.
(2)
In subsection (1), fees framework has the same meaning as in section 10 of the Crown Entities Act 2004.
98 Proceedings of Board
The Board may regulate its own proceedings, subject to the provisions of this Part.
99 Nominations before commencement of this Part must be treated as complying with section 93
(1)
This section applies to any process undertaken before the commencement of this Part—
(a)
in the manner set out in section 93(2); and
(b)
for the purpose of receiving nominations for members of the Board.
(2)
For the purposes of this Act, the process must be treated as complying with section 93.
Reprints notes
1 General
This is a reprint of the Waste Minimisation Act 2008 that incorporates all the amendments to that Act as at the date of the last amendment to it.
2 Legal status
Reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by any amendments to that enactment. Section 18 of the Legislation Act 2012 provides that this reprint, published in electronic form, has the status of an official version under section 17 of that Act. A printed version of the reprint produced directly from this official electronic version also has official status.
3 Editorial and format changes
Editorial and format changes to reprints are made using the powers under sections 24 to 26 of the Legislation Act 2012. See also http://www.pco.parliament.govt.nz/editorial-conventions/.
4 Amendments incorporated in this reprint
Legislation (Confirmable Instruments) Amendment Act 2015 (2015 No 120): section 14
Search and Surveillance Act 2012 (2012 No 24): sections 306, 307
Criminal Procedure Act 2011 (2011 No 81): section 413
Policing Act 2008 (2008 No 72): section 116(a)(ii)
Versions
Waste Minimisation Act 2008
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