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New Zealand Legislation for Niue |
NEW ZEALAND
THE NIUE ACT 1966
Act 38 of 1966 - 1 January 1967
Title
1. Short Title and commencement
2. Interpretation
3. Application
PART I
THE EXECUTIVE GOVERNMENT OF NIUE
4-14D. Repealed
The Public Revenues of Niue
15. Repealed
16. Loans to Niue Government Account
17. Treasurer of Niue
18. Revenue and expenditure
19. Traders' deposit accounts
20. Repealed
21. Persons authorised to practise medicine or surgery
22. Offences
23. Director of Health
23A. Medical Services
24. Hospitals and other institutions of public health
25. Compulsory transfer of lepers
Prisons and Police
26. Establishment of prisons
27. Detention of persons in custody
28. Labour instead of imprisonment
29. Appointment of officers of police and prisons
29A. Penal value
Education
30. Repealed
PART II
THE LEGISLATIVE GOVERNMENT OF NIUE
31-47. Repealed
48. Publication of enactments in the Niue Island Gazette
Regulations
49. Repealed
Village councils
50. Village Councils
51. Village Council bylaws
52. Validity and disallowance of bylaws
PART III
THE HIGH COURT OF NIUE
Constitution of the High Court
53-61. Repealed
62. Registrar and Deputy Registrar of the High Court
63. Administrative officers
64. Seal of the High Court
65. Records of the High Court
Jurisdiction of the High Court
66. Repealed
67. Injunction, certiorari, mandamus and prohibition
68. Habeas corpus
69. Custody of minors
Procedure of the High Court
70. Rules of Court
71. Procedure so far as not governed by rules of Court
72. Forms
73. Summons to witnesses
74. Default of witness
75. Commissioners to take evidence
76. Evidence by affidavit sworn out of Niue
77. Witnesses may be ordered out of Court
78. Affidavits in Niue
79. Evidence by affidavit
80. Right of audience in the High Court
81. Costs
82. Security for costs
83. Court fees
84. Minutes of judgement
85. Amendments
86. Rehearing of civil proceedings
87. Rehearing of criminal proceedings
Execution of Judgment
88. Writs of sale and possession.
89. Effect of writ of possession
90. Effect of writ of sale
91. Issue of writs of sale or possession
92. Charging orders
93. Stay of execution
94. Judgment summons
95. Enforcement of judgments of High Court in Supreme Court of New Zealand
Absconding Debtors
96. Order of arrest of absconding debtor
96A. Commissioner and Justices Authority
97. Security to be given
98. Enforcement of security
99. Arrest in actions for penalties
100. Enforcement of security in actions for penalties
Contempt of the High Court
101. Contempt of Court defined
102. Penalty for contempt
103. Jurisdiction in contempt
104. Contempt in the face of the Court
105. Discharge of persons in contempt
PART IV
THE SUPREME COURT OF NEW ZEALAND
Jurisdiction of the Supreme Court in Niue
106. Civil jurisdiction of Supreme Court extends to Niue
107. Jurisdiction under the Declaratory Judgments Act 1908
108. Criminal jurisdiction of Supreme Court in respect of Niue
Cases Stated by the High Court or Land Court or Land Appellate Court
109. High Court or Land Court or Land Appellate Court may state a case for the Court of Appeal
Cases Stated by Supreme Court for Land Appellate Court
110. Supreme Court may state case for Land Appellate Court
Appeals from the High Court
111-112. Repealed
113. Transmission of record
114. Dismissal of appeal for non prosecution
115. Procedure on appeal
116. Repealed
117. Powers of Court of Appeal on appeal
118. Evidence on appeal
119. Stay of execution.
120. Release of appellant from custody
121. Appeal not to be allowed for irregularities in procedure
122. Right of audience on appeal
123. Transmission of order of Court of Appeal on appeal
124. Repealed
125. No certiorari, mandamus or prohibition
Enforcement in Niue of Judgments of New Zealand Courts
126. Judgment of Supreme Court or Magistrate's Court in New Zealand may be enforced by the High Court
127. Enforcement of judgments of Supreme Court by High Court by way of proceedings for contempt
Commissioners of the Supreme Court
128. Commissioners of the Supreme Court may be appointed in Niue
PART V
CRIMINAL OFFENCES
129. Seditious offences defined
130. Punishment of seditious offences
131. Homicide defined
132. Killing of a child
133. Culpable homicide
134. Murder defined
135. Further definition of murder
136. Provocation
137. Illegal arrest may be evidence of provocation
138. Punishment of murder
139. Manslaughter
140. Punishment of manslaughter
141. Omissions dangerous to life
142. Duty to provide the necessaries of life
143. Duty of parent or guardian to provide necessaries
144. Liability of persons having charge of dangerous things
145. Hastening death
146. Indirect cause of death
147. Attempted murder
148. Conspiracy and inciting to murder
149. Counselling suicide
150. Concealment of birth
151. Grievous bodily harm
152. Actual bodily harm
153. Omissions resulting in bodily harm
154. Intentionally endangering persons an aerodromes, etc.
155. Wantonly endangering persons on or near aerodromes, etc.
156. Indecent assault
157. Assault
157A. Cruelty to a child
158. Resisting constable in execution of his duty
159. Abduction of girl under 15
160. Abduction of children
161. Sexual intercourse defined
162. Rape
163. Sexual intercourse or indecency with girl under 12
164. Sexual intercourse or indecency with girl between 12 and 15
165. Sexual intercourse with woman or girl who is an idiot or imbecile or of unsound mind
166. Procuring miscarriage of woman or girl
167. Act of woman or girl procuring her own miscarriage
168. Supplying means of miscarriage
169. Bigamy
170. Buggery
171. Attempted buggery and indecent assaults on males
172. Incest
173. Indecent acts
174. Indecent documents
175. Brothels
176. Gaming houses
176A. Powers of Parliament to permit certain gambling activities
177. Riot
178. Forcible entry
179. Affrays
180. Official corruption
181. Perjury
182. Fabricating evidence
183. Conspiracy to pervert justice
184 Breaking prison
185. Escape
186. Rescue
187. Criminal libel or slander
188. Definition of theft
189. Ineffectual defences to charge of theft
190. Extended definition of theft
191. Obtaining money or goods by false pretences to be deemed theft
192. Punishment of theft
193. Stealing documents
194. Receiving stolen goods
195. Robbery
196. Conversion or attempted conversion of motorcars, etc.
197. Breach of trust
198. Menaces
199. Witchcraft
200. Obtaining credit by fraud
201. Accusation of criminal offences
202. Conspiracy to defraud
203. Obtaining execution of valuable securities by fraud
204. Burglary
205. Unlawful entry of dwellinghouse, etc.
205A. Unlawfully entering premises for a criminal purpose
206. Threats to kill or do bodily ham
207. Forgery
208. Extended definition of forgery
209. Making counterfeit coin
210. Lightening coin
211. Uttering counterfeit coin
212. Arson
213. Wilful mischief to property
214. Provoking breach of the peace
215. Profane, indecent, or obscene language
216. Disorderly conduct in public places
217. Obstructing public place
218. Drunkenness
219. Animal trespass
220. Prostitution
221. Laying poison
222. Polluting water
223. Sale of unwholesome provisions
224. Insanitary premises
225. Wilful trespass
226. Cruelty to animal
227. Falsely trading as an incorporated company
228. Conspiracy
228A. Wrongful communication, retention or copying of official information
Attempts
229. Attempts to commit offences
230. Attempt proved when offence is charged
231. Offence proved when attempt is charged
Parties to Offences
232. Inciting
233. Parties to offences
234. Common criminal purpose
235. Counselling or procuring
236. Accessory after the fact
237. Punishment of accessories
Infancy
237A. Children under 10
237B. Children between 10 and 14
Defences
238. Common law defences
239. Common law offences
Sentences
240. Power to fine instead of or in addition to imprisonment
241. Enforcement of fines
242. Imprisonment in Niue
243. Transfer of convicted persons to New Zealand
244. Release of prisoners transferred to New Zealand
244A. Recall of offender subject to supervision
245. Person conditionally released from imprisonment, or portion of whose sentence is conditionally remitted, may be reimprisoned
246. Cumulative sentences
PART VI
CRIMINAL PROCEDURE
247. Magistrates
248. Jurisdiction of High Court
249. Felonies and misdemeanours
Preliminary proceedings
250. Arrest without warrant
251. Arrest on warrant of Magistrate
251.A. Duty of persons arresting
252. Committal by Magistrate for trial
Trial by the High Court
253. Information
254. Warrant or Summons
255. Warrant after issue of summons
255A. Arrested person may be released on bail by constable in certain cases
256. Prisoners brought before judge of High Court before commencement of prosecution
257. Remand
258. Trial of accused in his absence
Assessors
259. Constitution of Court on criminal trials
260. Judge with assessors
261. Judge without assessors
262. Judge with or without assessors as he thinks fit
263. Order appointing assessors
264. Number and qualifications of assessors
265. Default of assessors
266. Remuneration of assessors
267. Oath of assessors
268. Change of assessors
269. Discharge of assessors and new trial
270. Concurrence of assessors
271. Concurrence of Judge
272. Sentence
273. Concurrence of assessors not necessary except for conviction
Miscellaneous Provisions
274. Alternative and cumulative charges
275. Relation between information and conviction
276. Withdrawal of information
277. Drawing up of conviction
278. Defects of information, summons or warrant
279. Payment of witnesses
280. Court may order convicted person to come up for sentence if called upon
281. Conviction without sentence or discharge without conviction
282. Bail
283. Stay of proceedings by Cabinet
284. Search warrants
284A. Power to enter premises to arrest offender or prevent offence
285. Transmission of certain warrants and orders by telegram
286. Pardon and remission of sentence
287. Compensation for loss of property
PART VII
LAW OF EVIDENCE
288. Definition
289. Discretionary power of admitting or rejecting evidence
290. All witness competent
291. Evidence of parties and their husband and wives
292. Evidence of accused persons and their husbands and wives
293. Cross-examination as to credit
294. Criminating questions
295. Evidence of prisoners
296. Judicial notice of Acts, etc.
297. Judicial notice of seals, etc.
298. Power to administer oaths
299. Form of oath
300. Absence of religious belief
301. Affirmation may be made instead of oath
302. Form of affirmation
303. Evidence of children without oath
304. Necessity of oath
PART VIII
EXTRADITION
Extradition from Niue to New Zealand or to the Cook Islands
305. Arrest in Niue of fugitive offenders from New Zealand or the Cook Islands
306. Order of return to New Zealand or to the Cook Islands
307. Refusal of order in case of hardship
308. Imprisonment or release pending return
309. Release on security instead of return
310. Return to New Zealand or to the Cook Islands in custody
311. Cancellation of order of return
Extradition from New Zealand to Nine
312. Arrest in New Zealand of fugitive offenders from Niue
313. Order of return to Niue
314. Judicial notice of signature to warrant
315. Refusal of order in case of hardship
316. Imprisonment or release pending return
317. Release on security instead of return
318. Return to Niue in custody
319. Cancellation of order of return
Application of Extradition Act to Niue
320. Extradition Act in force in Niue
PART IX
CROWN SUITS
321. Crown proceedings in Niue
322. Repealed
PART X
CROWN LAND
323-334. Repealed
PART XI
THE LAND COURT OF NIUE
335-385. Repealed
PART XII
THE LAND APPELLATE COURT OF NIUE
386-404. Repealed
PART XIII
CUSTOMARY LAND
405-414. Repealed
PART XIV
PARTITION AND EXCHANGE OF NIUEAN LAND
415-430. Repealed
PART XV
ALIENATION OF NIUEAN LAND
431-460. Repealed
PART XVI
LAND DEVELOPMENT
461. Application of this Part
462. Cabinet of Ministers may cultivate land on behalf of owners
463. Disposal of revenues received by Cabinet of Ministers
464. Money to be paid out of or into Niue Government Account
465. Repealed
466. Interference and obstruction prohibited
467. Repealed
PART XVII
HOUSING IMPROVEMENT
468-483. Repealed
PART XVIII
VESTING ORDERS
484-488. Repealed
PART XIX
NIUEAN SUCCESSION
489. Wills of Niueans
490. Succession to deceased Niueans
491. Niuean land not to vest in administrator
492-496. Repealed
497. Niuean land not assets for payment of debts
498. Estate of Niuean other than land to be assets for payment of debts
499. Repealed
PART XX
TRUSTEES FOR NIUEANS
500. Definition of "person under disability"
501. Trustee orders
502. Matters to be set forth in trustee orders
503. Appointment of new trustees
504. Orders restricting powers of trustees
505. Cancellation of trustee orders
506. Determination of trustee orders
507. Trust property not to vest in trustee
508. Administration of property by trustee
509. Alienation of property by trustee
510. Powers of trustee
511. Expenditure of revenues of trust property
512. Enforcement of trusts
513. Co-trustees must act jointly
514. Remuneration of trustees
PART XXI
MARRIAGE
515. Prohibited degrees of consanguinity or affinity
516. Marriages to take place before marriage officer
517. "Marriage officer" defined
518. Appointment of marriage officers
519. Offence
520. Notice of marriage
521. Mode of solemnization
522. Record of marriage
523. Signature of record
524. Transmission of record
525. Minimum age of marriage
526. Marriage of minors
527. Offence by marriage officer
528. Signature of false record by party or witness
529. Misrepresentation as to facts to procure marriage
PART XXII
DIVORCE
530. Jurisdiction of High Court in divorce
531. Nullity of marriage and dissolution of voidable marriage
532. Limitation of jurisdiction
533. Domicile and residence
534. Grounds of divorce and jurisdiction of High Court
535. Grounds of refusal of divorce
536. Discretion to refuse decree in certain cases
537. Co-respondent as a party
538. Intervention
539. Agreement no bar to divorce
540. No appeal to Court of Appeal
541. Remarriage of divorced persons
542. Costs
543. Order for maintenance of divorced wife
544. Order as to custody of children
545. Molestation of divorced wife by her husband
546. Jurisdiction of Supreme Court
PART XXIII
MAINTENANCE AND AFFILIATION
547. Interpretation
Maintenance and Affiliation Orders
548. Jurisdiction of High Court
549. Applications
550. Jurisdiction discretionary
551. Affiliation orders
552. Evidence
553. Maintenance order in favour of child born out of wedlock
554. Maintenance order against father in favour of child
555. Maintenance order against mother in favour of child
556. Maintenance order against husband in favour of wife
557. Maintenance order against wife in favour of husband
558. Maintenance order against any person in favour of father or mother
559. Disobedience to maintenance order
560. Maintenance money a debt
561. Order in favour of non-residents
562. Order against non-residents
563. Orders in absentia
564. Repeated applications
565. Payments not to be made in advance
566. Cancellation, variation, and suspension of orders
567. Payment of maintenance money
568. Security for obedience to maintenance orders
569. Operation of agreements
570. Purport and duration of maintenance orders
571. Order for past maintenance
Offences
572. Leaving Niue while maintenance money in arrears
573. Leaving Niue after affiliation order and before birth of child
574. Leaving Niue with intent to disobey maintenance order
575. Leaving Niue while failing to maintain wife
576. Leaving Niue while failing to maintain child
577. Leaving Niue with intent to desert wife or child
578. Attempting to leave Niue
579. Evidence of intent
PART XXIV
ADOPTION OF CHILDREN BY NIUEANS
580-592. Repealed
PART XXV
ADOPTION OF CHILDREN BY EUROPEANS AND NIUEAN SPOUSE OF EUROPEANS
593-599. Repealed
PART XXVI
PERSONS OF UNSOUND MIND
Orders of Medical Custody
600. Applications by Medical Officer to High Court
601. Medical certificates as to persons of unsound mind
602. Order of medical custody
603. Renewal of order
604 Cancellation of order
605. Discharge from custody
606. Arrest and detention of persons committed to medical custody
607. Treatment of person so detained
608. Removal from Niue to New Zealand
609. Conditions of removal
610. Method of removal
611. Admission to hospital of persons removed to New Zealand
612. Administration of estates of persons of unsound mind
613. No committee of estate of person of unsound mind
614. Warrant for arrest of persons of unsound mind
615. Arrest without warrant of persons of unsound mind
615A. Commissioner and Justices may act for Judge in certain cases
Persons of Unsound Mind Charged with Offences
616. Insane persons not to be tried for offences
617. Detention of accused persons acquitted on ground of insanity
618. Discharge
619. Orders of medical custody
620. The defence of insanity in criminal Prosecutions
PART XXVII
[Repealed]
PART XXVIII
ROADS
634-644. Repealed
PART XXIX
NIUEAN ANTIQUITIES
645. Interpretation
646. Minister may acquire Niuean antiquities
647. Niuean antiquities to be offered for sale before exportation
648. Power to detain Niuean antiquities attempted to be exported
649. Exporting Niuean antiquities without permission
650. Power to remove antiquities in certain cases
651. Right to copy of intended to be exported
652. Cabinet of Ministers to decide what articles come under this Part
653. Repealed
PART XXX
CUSTOMS
654. Customs Act 1966 in force in Niue
655. Niue Assembly may modify Tariff or substitute new Tariff
655A. Power to modify tariff or substitute new tariff
656. Goods may be imported from New Zealand or Cook Islands free of duty
657. [Repealed]
658. Actions and prosecution s in relation to Niue
PART XXXI
THE NIUE PUBLIC SERVICE
659. Interpretation
660. Appointments of employees
661. Exemptions
662. State Services Act 1962 not applicable
663, 664. Repealed
665. Public Service Regulations
666. Payment of salary and allowances
667. Bonds and deeds of covenant by employees or prospective employees
668. Concurrent offices
669. Employment in New Zealand Government Service and Niue Public Service
670. Contribution to Government Superannuation Fund by employees of the Niue Public Service
671. Repealed
PART XXXII
THE LAWS OF NIUE; GENERAL PROVISIONS
Application of the Laws of New Zealand
672. Law of England as in the year 1840 to be in force in Niue
673. Jurisdiction of the High Court
674. Common law and equity to be administered concurrently
675. Statute law of New Zealand not applicable to Niue
676. When enactment in force in Niue, amendments and regulations to be in force also
677. Other enactments in force in Niue to be read subject to this Act
678. Criminal procedure in Niue
679. Acts Interpretation Act in force in Niue
680. Administration Act in force in Niue
681. Arbitration Act in force in Niue
682. Bills of Exchange Act in force in Niue
683. Carriers Act in force in Niue
683A. Charitable Trusts Act in force in Niue
684. Chattels Transfer Act in force in Niue
684A. Citizenship Act in force in Niue
685. [Repealed]
686. Copyright Act in force in Niue
687. Deaths by Accidents Compensation Act in force in Niue
688. Demise of the Crown Act in force in Niue
689. Designs Act in force in Niue
689A. Misuse of Drugs Act in force in Niue
690. Incorporated Societies Act in force in Niue
691. Industrial and Provident Societies Act in force in Niue
692. Parts of Infants Act in force in Niue
693. Marine Insurance Act in force in Niue
694. Mercantile Law Act in force in Niue
695. Merchandise Marks Act in force in Niue
696. Occupiers Liability Act in force in Niue
697. Partnership Act in force in Niue
698. Patents Act in force in Niue
699. Post Office Act in force in Niue
700. Property Law Act in form in Niue
701. Sale of Goods Act in form in Niue
701A. Seal of New Zealand Act in force in Niue
702. Trade Marks Act in force in Niue
703. Trustee Act in force in Niue
704. Wills Act Amendment Act 1852 in force in Niue
705. Merchant Shipping Act (U.K.) not to apply to Niue
706. Limitation of actions
Miscellaneous Rules of Law
707. Legal status of married women
708. Legitimacy
709. Joint liability
710. Contracts of guarantee
711. Contracts
712. Securities given by Niueans
713. Employer’s liability
714. Liability of owners of dogs
715. Distress for rent abolished
716. Libel and slander actionable without proof of special damage
717. Calendar of Niue
718. Time of day in Niue
719. Statutory references to time
720. Statutory declarations
721. Execution of documents in Niue for use in New Zealand
722. Taxes on Niuean land
723. Bankruptcy
724. Warrants of arrest
725. Trespass ab initio
Miscellaneous Provisions
726. Banking
727. Sale of island products by Cabinet of Ministers on behalf of planters
Oath of Allegiance and Judiciary Oath
728. Certain officers to take Oath of Allegiance and Judicial Oath
PART XXXIII
TRANSITIONAL PROVISIONS, SAVINGS, AND CONSEQUENTIAL AMENDMENTS
729. Cook Islands Act and amendments not to apply to Niue
730. The High Court
731. The Land Court
732. The Land Appellate Court
733. The Niue Public Service
734. Customs
735. Consequential amendments
Schedules
----------------------------------------------------
An Act to consolidate and amend certain enactments of the General Assembly relating to the Government and laws of Niue
[7 October 1966]
1. Short Title and commencement - (1) This Act may be cited as the Niue Act 1966.
(2) Part XXX of this Act shall come into force on a date to be appointed for the commencement thereof, by Order in Council.
(3) Except as provided in subsection (2) of this section, this Act shall come into force on the 1st day of January 1967 (hereinafter referred to as the commencement of this Act).
Part XXX came into force on 1 January 1970; see S.R. 1969/232.
2. Interpretation - In this Act, unless the context otherwise requires,-
["Act" means an Act of the Niue Assembly;]
"Aerodrome" and "aircraft" have the same meanings as in the Civil Aviation Act 1964;
"Attorney-General" includes the Solicitor-General;
"Comptroller of Customs" means the officer of the Niue Public Service holding the position of Comptroller of Customs; and includes his deputy lawfully acting in place of the Comptroller;
"Constable" means an officer of police of the Niue Public Service;
["The Constitution" means the Constitution of Niue, as set out in the Niuean language in the First Schedule to the Niue Constitution Act 1974 and in the English language in the Second Schedule to that Act;]
"Defence" means the defence of Niue and the defence of New Zealand;
["Director of Health" means the Director of Health of Niue appointed under section 23 of this Act;]
["Enactment" has the same meaning as in Article 82(1) of the Constitution;]
"European" means any person whatever other than a Niuean and includes a body corporate;
"External affairs" includes relations with other countries, and with international organisations, and the representation of other countries in Niue;
"High Court" means the High Court of Niue;
"Judgment" includes any judicial decree, order, or determination, whether in an action or in any other judicial proceeding, whether civil or criminal;
"Land Appellate Court" means the Land Appellate Court of Niue;
"Land Court" means the Land Court of Niue;
["Medical officer" means any person authorised, pursuant to section 21 of this Act, to engage in the practice of medicine or surgery in Niue, for fee, salary, or other remuneration or reward; and includes the Director of Health;]
["Minister" means the Minister of Foreign Affairs];
"Niuean" means a person belonging to the aboriginal race of Niue; and includes a person descended from a Niuean;
"New Zealand" means New Zealand exclusive of Niue, the Cook Islands, and [Tokelau];
["Niue Assembly" or "Assembly" means the Niue Assembly established by Article 16 of the Constitution;
["Niue Public Service" has the same meaning as in Article 82(1) of the Constitution;
"Niue Public Service Commission" or "Commission" means the Niue Public Service Commission established by Article 82(1) of the Constitution;]
"Niuean custom" means the customs and usages of Niue;
"Offence" includes all offences punishable by way of criminal proceedings under this or any other enactment;
"Order" means, in respect of the High Court or the Land Court, any order, judgment, decision, or determination of that Court;
"Ordinance" means an Ordinance of the Island Assembly;
"Prescribed" means prescribed by regulations;
["Premier" has the same meaning as in Article 82(1) of the Constitution;]
"Public place" means any road, any place of public resort open to or used by the public as of right, any wharf or jetty, any vessel at a wharf or jetty or within one mile of the shore, any church or other building where Divine service is being publicly held, any hall or room in which any public entertainment is being held, and any market place;
"Registrar", in relation to any Court, includes the Deputy Registrar;
"Regulations" means regulations made under this Act or continuing in force under this Act;
"Rules of Court" means rules or regulations governing the practice or procedure of the Court in question and made by the proper authority in that behalf;
["Secretary" means the Secretary of Foreign Affairs;]
"Valuable security" means any document which constitutes a title to or is evidence of title to any property of any kind whatsoever;
"Will" includes any testamentary instrument.
Cf. 1915, No. 40, ss. 2(1), 226(4); 1921, No. 14, s. 2; 1943, No. 4, s. 5(2), (5), (6); 1946, No. 30, s. 41; 1950, No. 92, s. 11; 1957, No. 103, ss. 89(2), 95(1); 1965, No. 1, s. 3(1)
"Act"; The definition of this term was inserted by s. 2(1) of the Niue Amendment Act 1974.
"Alienation"; A definition of this term was repealed by s. 102(1) of the Niue Amendment Act (No. 2) 1968.
"Cabinet"; The definition of this term was inserted by s. 2(1) of the Niue Amendment Act 1974.
"Commission" A definition of this term was repealed by s. 2(1) of the Niue Amendment Act 1974.
"The Constitution"; The definition of this term was inserted by s. 2(1) of the Niue Amendment Act 1974.
"Crown land" and "Customary land"; Definitions of these terms were repealed by s. 102(1) of the Niue Amendment Act (No. 2) 1968.
"Director of Health"; The definition of this term was inserted by s. 18(1) of the Niue Amendment Act 1971.
"Enactment"; The definition of this term was substituted for the former definition (as substituted by s. 4(2) of the Niue Amendment Act 1971) by s. 2(1) of the Niue Amendment Act 1974.
"European land"; A definition of this term was repealed by s. 102(1) of the Niue Amendment Act (No. 2) 1968.
"Executive Committee"; A definition of this term was inserted by s. 4(1) of the Niue Amendment Act 1971 and was repealed by s. 2(1) of the Niue Amendment Act 1974.
"Island Assembly"; A definition of this term (as substituted by s. 5(1) of the Niue Amendment Act 1973) was repealed by s. 2(1) of the Niue Amendment Act 1974. (See the definition of "Niue Assembly" or "Assembly")
"Leader of Government"; A definition of this term was inserted by s, 4 (1) of the Niue Amendment Act 1971 and was repealed by s. 2(1) of the Niue Amendment Act 1974.
"Medical Office"; The definition of this term was substituted for the original definition by s. 18(2) of the Niue Amendment Act 1971.
"Minister"; The definition of this term was substituted for the former definition (as substituted by s. 8(1) of the Maori and Island Affairs Department Act 1968) by s. 2(1) of the Niue Amendment Act (No. 2) 1974.
"New Zealand"; The reference to Tokelau was substituted for a reference to the Tokelau Islands by s. 3(8) of the Tokelau Amendment Act 1976.
"Niue Assembly" or "Assembly"; The definition of this term was inserted by s. 2(1) of the Niue Amendment Act 1974.
"Niue Public Service" and "Niue Public Service Commission"; The definitions of these terms were substituted for the definition of the term "Niue Public Service" by s. 2(1) of the Niue Amendment Act 1974.
"Niuean freehold land" and "Niuean land"; Definitions of these terms were repealed by s. 102(1) of the Niue Amendment Act (No. 2) 1968.
"Premier"; The definition of this term was inserted by s. 2(1) of the Niue Amendment Act 1974.
"Resident Commissioner"; A definition of this term was substituted for the original definition by s. 4(2) of the Niue Amendment Act 1971 and was repealed by s. 2(1) of the Niue Amendment Act 1974.
"Secretary"; The definition of this term was substituted for the former definition (as substituted by s. 8(1) of the Maori and Island Affairs Department Act 1968) by s. 2(2)(1) the Niue Amendment Act (No. 2) 1274.
3. Application - Except so far as a contrary intention appears, this Act shall apply to Niue only and not to New Zealand.
PART I
THE EXECUTIVE GOVERMENT OF NIUE
4-14D. Repealed by s. 2(1) of the Niue Amendment Act 1974.
The Public Revenues of Niue
15. Repealed by s. 2(1) of the Niue Amendment Act 1974.
16. Loans to Niue Government Account - (1) The Minister of Finance may from time to time, on such terms and conditions as he thinks fit, pay by way of loan into [the Niue Government Account] money required for public purposes in Niue
(2) The money required by the Minister of Finance to enable him to make any such payment by way of loan shall be paid out of money appropriated by Parliament for the purpose.
Cf. 1964, No. 70, s. 16
In subs. (1) the reference to the Niue Government Account was substituted for a reference to the Niue Assembly Account by s. 2(2)(f) of the Niue Amendment Act 1974.
17. Treasurer of Niue - There shall be appointed under the provisions of Part XXXI of this Act a Treasurer of Niue, who shall have such functions, powers, and duties in relation to the collection, receipt, custody, banking, issue, expenditure, and management of the money in [the Niue Government Account] or in any other public fund or account as may from time to time be prescribed by regulations or, where there are no such regulations or so far as the regulations do not extend, by [Act of the Niue Assembly].
Cf. 1964, No. 70, s. 17
The reference to the Niue Government Account was substituted for a reference to the Niue Assembly Account by s. 2(2)(f) of the Niue Amendment Act 1974.
The reference to an Act of the Niue Assembly was substituted for a reference to an Ordinance by s. 2(2)(e) of the Niue Amendment Act 1974.
18. Revenue and expenditure - (1) Except as provided in subsection (3) of this section, or by any specific appropriation contained in any [Act of the Niue Assembly], all expenditure in any financial year from [the Niue Government Account] or from any other public fund or account shall be charged to votes specified in an Appropriation [Act of the Niue Assembly] and in accordance with the statement of proposed expenditure for that financial year as approved by [the Niue Assembly].
(2) Every Appropriation [Act of the Niue Assembly] shall lapse at the end of the financial year to which it relates.
(3) Subject to such limits and restrictions as may from time to time be prescribed by [Act of the Niue Assembly], [the Cabinet] may approve the expenditure of such sums as. . . it considers necessary-
(a) In anticipation of provision to be made in the Appropriation [Act of the Niue Assembly] for any financial year:
Provided that the total amount issued and paid under this paragraph (a) in any financial year shall not exceed the amount of any expended balance of the vote in the Appropriation [Act of the Niue Assembly] for the preceding financial year together with an amount equal to one-fourth of that vote; or
(b) Where during the period between the passing of the Appropriation [Act of the Niue Assembly) for any financial year and the end of that year it is desirable that money should be expended in excess of or without the appropriation of [the Niue Assembly]:
Provided that the total amount of all sum issued and paid under this paragraph (b) in any financial year shall not exceed 11/2 percent of the total amount of all sums appropriated by the Appropriation [Act of the Niue Assembly] for that year.
(4) A statement of the unauthorised expenditure for any financial year shall be included in the accounts for that year laid before [the Niue Assembly].
(5) Subject to the foregoing provisions of this section, the collection, receipt, custody, banking, issue, expenditure, care, and management of money credited or to be credited to [the Niue Government Account] or to any other public fund or account shall be in accordance with such [Acts of the Niue Assembly] as may be made in that behalf.
Cf. 1964, No. 70, s. 18
In subss. (1), (2), (3), and (5) the references to an Act of the Niue Assembly were substituted for references to an Ordinance by s. 2(2)(e) of the Niue Amendment Act 1974.
In subss. (1) and (5) the references to the Niue Government Account were substituted for references to the Niue Assembly Account by s. 2(2)(f) of the Niue Amendment Act 1974.
In subss. (1), (3)(b), and (4) the references to the Niue Assembly were substituted for references to the Island Assembly by s. 2(2)(d) of the Niue Amendment Act 1974.
In subs. (3) the words "the Cabinet" were substituted for the words "the Resident Commissioner, or, where any Ordinance so provides, the Executive Committee" by s. 2(1) of the Niue Amendment Act 1974, and the words "he or" have been in consequence omitted as otiose.
19. Traders' deposit accounts - Notwithstanding anything in this Part of this Act, [the Cabinet of Ministers] may accept money on deposit from any trader established in Niue.
(2) Where [the Cabinet of Ministers] holds any money on deposit for a trader under this section, [the Cabinet of Ministers] may disburse the money by paying the whole or part thereof, with the authority of the trader, in discharge of any liability of the trader to the Crown, and [the Cabinet of Ministers] shall not disburse any money so held in any other mariner.
(3) All money which [the Cabinet of Ministers] accepts on deposit for any trader as aforesaid, and all disbursements of that money, shall be recorded in a special deposit account in [the Niue Government Account], and shall not form part of the ordinary revenue or expenditure of [the Niue Government Account].
Cf. 1964, No. 70, s. 19
In subss. (1), (2), and (3) the references to the Cabinet of Ministers, wherever they occur, were substituted for references to the Resident Commission by s. 2(2)(c) of the Niue Amendment Act 1974.
In subs. (3) the references to the Niue Government Account, wherever they occur, were substituted for references to the Niue Assembly Account by s. 2(2)(f) of the Niue Amendment Act 1974.
20. Repealed by s. 2(1) of the Niue Amendment Act 1974.
21. Persons authorised to practise medicine or surgery - (1) No person shall practise medicine or surgery in Niue for fee, salary, or other remuneration or reward of any nature whatsoever, unless-
(a) He is registered as a medical practitioner under the Medical Practitioners Act 1968; or
(b) He holds a certificate issued under the hand of the Secretary to the Medical Council of New Zealand that, in the opinion of that Council, he has attained a standard of practice in medicine and surgery equivalent to that required for registration as a medical practitioner under the Medical Practitioners Act 1968; or
(c) Being a graduate of the Fiji School of Medicine, he is an employee of the Niue Public Service under Part XXXI of this Act:
Provided that such a graduate employee (not being a graduate employee for the time being holding the position of Director of Health or acting Director of Health pursuant to an appointment made under section 23 of this Act) may practise medicine and surgery in Niue subject to such conditions as may be prescribed by [[Act of the Niue Assembly]], or, if no conditions are so prescribed, subject to the control, direction, and supervision of the Director of Health, and not otherwise.
(2) Notwithstanding anything in the proviso to paragraph (c) of subsection (1) of this section,-
(a) If no conditions are prescribed by [[Act of the Niue Assembly]] as aforesaid and the position of Director of Health is vacant and no acting Director of Health has been appointed; or
(b) If no conditions are so prescribed and the Director of Health is absent from Niue or is otherwise incapable of performing his duties, exercising his powers, and carrying out his functions,-
any such graduate employee may practise medicine or surgery in Niue subject to the general control of [[the Cabinet of Ministers]], and not otherwise.
In subss. (1) and (2)(a) the references to an Act of the Niue Assembly were substituted for references to an Ordinance by s. 2(2)(e) of the Niue Amendment Act 1974.
In subs. (2) the reference to the Cabinet of Ministers was substituted for a reference to the Resident Commissioner by s. 2(2)(c) of the Niue Amendment Act 1974.
[22. Offences - (1) Every person commits an offence against this Act who, not being a medical officer,-
(a) Directly or by implication represents or holds himself out to be a medical officer; or
(b) Engages, for or without any fee, salary, or other remuneration or reward, in the practice of medicine or surgery, or any branch of medicine or surgery, under the style or title of physician, surgeon, doctor, licentiate in medicine or surgery, bachelor of medicine, or medical practitioner, or under any name, title, addition, or description implying that he holds any degree or diploma in medicine or surgery or in any branch of medicine or surgery, or is otherwise specially qualified to practise medicine or surgery or any branch of medicine or surgery.
(2) Every person who commits an offence against this section is liable-
(a) On a first conviction, to a fine not exceeding $100, and, where the offence is a continuing one, to a further fine not exceeding $100 for each day on which the offence has continued;
(b) On a second or subsequent conviction, to imprisonment for a term not exceeding 2 months or to the penalties specified in paragraph (a) of this subsection.
[23. Director of Health - (1) There shall be appointed under Part XXXI of this Act a Director of Health of Niue.
(2) No person shall be qualified to be appointed or to hold office as Director of Health of Niue, unless-
(a) He is qualified to practise medicine and surgery pursuant to paragraph (a) or paragraph (b) of subsection (1) of section 21 of this Act; or
(b) Being a graduate of the Fiji School of Medicine he holds such other qualification, or has had such work experience in medicine, or has a combination of such other qualification and such work experience in medicine, as the Commission thinks fits [sic].
(3) Any person holding office at the commencement of this section as Chief Medical Officer of Niue shall on the commencement of this section be deemed to have been appointed as Director of Health of Niue.
(4) Whenever the position of Director of Health is vacant, or the Director of Health is absent from Niue or is in the opinion of the Niue Public Service Commission unable by reason of physical or mental disability to perform the functions of his office, the Niue Public service Commission, may, by an instrument in writing under [[its]] hand appoint any medical officer to be the acting Director of Health:
Provided that no medical officer, other than a person qualified to be appointed as Director of Health, shall be appointed acting Director of Health unless, in the opinion of the Niue Public Service Commission there is in Niue no medical officer in the service of the Government of New Zealand or of the Government of Niue who is qualified and willing to occupy the position of Director of Health, and is capable of performing the duties, exercising the powers, and carrying out the functions of the Director of Health.
(5) Any appointment made, pursuant to subsection (4) of this section, of an acting Director of Health may, by an instrument in writing under his hand, at any time be revoked by the Niue Public Service Commission.
(6) An acting Director of Health shall, during the subsistence of his appointment, perform all the duties, exercise all the powers, and carry out all the functions of the Director of Health, whether conferred by this Act or any other enactment.
(7) The appointment of an acting Director of Health shall not, on the grounds that the occasion for the appointment has not arisen or has ceased, be impugned or called into question in any proceedings in any Court or otherwise howsoever.
(8) The Director of Health shall, subject to the general control of the [[Cabinet of Ministers]], be responsible, in Niue, for the administration of all laws relating to public health, mental health, hospitals, medical and surgical services, and the quarantine of persons.
In subss. (4), (5), and (8) the references to the Cabinet of Ministers, wherever they occur, were substituted for references to the Resident Commissioner by s. 2(2)(c) of the Niue Amendment Act 1974.
[Amended 2/98/1984]
[23A. Medical services - (1) Without restricting the provisions of subsection (8) of section 23 of this Act, it shall be the duty of the Director of Health to provide for all persons in Niue such medical and surgical services as may be reasonable required and reasonably practicable.
(2) Medical and surgical treatment, aid, and attendance provided by any medical officer employed in the Niue Public Service may, in the case of Niueans be gratuitous; and shall, in the case of all other persons, be subject to payment of any reasonable and proper fees which may, from time to time, either generally or in any particular instance, be fixed or prescribed by [[the Cabinet of Ministers]]; and all fees for such treatment, aid, and attendance shall be paid into and shall form part of the public revenues of Niue.
(3) No liability shall be incurred by the Crown in respect of any failure or neglect to provide any services referred to in subsection (1) of this section or any treatment, aid, or attendance referred to in subsection (2) of this section, or in respect of any negligence, wrongful act, or wrongful omission on the part of any medical officer employed in the Niue Public Service or otherwise, in Niue, employed or engaged by the Crown.
In subs. (2) the reference to the Cabinet of Ministers was substituted for a reference to the Executive Committee by s. 2(2)(a) of the Niue Amendment Act 1974.
24. Hospitals and other institutions of public health - [[The Cabinet of Ministers]] may establish and maintain in Niue such hospitals and other institutions as it considers necessary for the public health, and all institutions so established shall be under the control of the Director of Health.]
Ss. 21 to 24 were substituted for the original ss. 21 to 24 by s. 17 of the Niue Amendment Act 1971.
In s. 24 the reference to the Cabinet of Ministers was substituted for a reference to the Executive Committee by s.2(2)(a) of the Niue Amendment Act 1974.
25. Compulsory transfer of lepers - (1)Every person who at any time is found in Niue to be suffering from leprosy may, by warrant under the hand of [the Premier] and the Seal of Niue, be transferred outside Niue to an institution for the treatment of leprosy and supervision of lepers approved by [the Premier] and specified in the warrant.
(2) In pursuance of any such warrant every person named therein in that behalf may be placed on board any ship belonging to Her Majesty in right of New Zealand or any ship registered in New Zealand or, with the consent of the master, any other ship, to be taken to the place directed in the warrant.
(3) Every person transferred outside Niue pursuant to this section shall be delivered, together with the warrant of [the Premier], to the Superintendent or other person having charge of the institution specified in the warrant.
(4) No person transferred pursuant to this section shall be entitled to be returned to Niue, except on the certificate of a medical officer, who is either an employee of the Niue Public Service or an officer of the aforesaid institution.
(5) All expenses incurred in connection with the transfer of a person who is suffering from leprosy or with the return of any person as aforesaid shall be a charge on the public revenues of Niue, and shall be debited to [the Niue Government Account].
Cf. 1964, No. 70, s. 25
In subss. (1) and (3) the word "Premier" was substituted for the words "Resident Commissioner " by s. 2(1) of the Niue Amendment Act 1974.
In subs. (5) the reference to the Niue Government Account was substituted for a reference to the Niue Assembly Account by s. 2(2)(f) of the Niue Amendment Act 1974.
Prisons and Police
26. Establishment of prisons - [The Cabinet of Ministers] may, by warrant under [its] hand and the Seal of Niue, appoint as prisons such buildings or places in Niue as [it] thinks suitable for that purpose.
Cf. 1964, No. 70, s. 26
The reference to the Cabinet of Ministers was substituted for a reference to the Resident Commissioner by s. 2(2)(c) of the Niue Amendment Act 1974.
27. Detention of persons in custody - (1) Any person in lawful custody in Niue may be detained in any such prison, and may from time to time be removed by order of [the Cabinet of Ministers] or of a judge of the High Court to any other prison in Niue.
(2) Any person in lawful custody in Niue may, if it is inconvenient or impracticable immediately to take him to any prison for confinement therein, be temporarily detained in any other suitable place of security.
Cf. 1964, No. 70, s. 27
In subs. (1) the reference to the Cabinet of Ministers was substituted for a reference to the Resident Commissioner by s. 2(2)(c) of the Niue Amendment Act 1974.
28. Labour instead of imprisonment - (1) Any person sentenced to imprisonment or committed to prison in Niue may, by order of a judge of the High Court made either at the time of sentence or committal or at any time thereafter, be discharged from custody on condition that he labours on public works in Niue for the term or the residue of the term for which he has been so sentenced or committed.
(2) Every prisoner so discharged shall perform the labour so appointed for him under the control and subject to the direction of some officer nominated for that purpose by [the Premier].
(3) If any prisoner so discharged makes default in the due performance of the labour so appointed for him, or is guilty of any insubordination or other misconduct, whether in respect of that labour or otherwise, he may be arrested without warrant by any officer of police or of prisons; and a judge of the High Court may in his discretion (without the necessity of any judicial inquiry) revoke the discharge of that prisoner and commit him to prism for a period equal to that for which he would have been imprisoned subsequent to the order of discharge had no such order been made, with such deduction (if any) as the judge thinks fit, having regard to the seriousness of the default, insubordination, or misconduct, and to any labour duly performed by the prisoner in accordance with the conditions of his discharge.
(4) Where pursuant to subsection (3) of this section a prisoner is committed to prism for a term expiring before the date on which, if he had not been discharged under this section, the original period of imprisonment would have expired, then, on the expiration of the term for which he is committed pursuant to that subsection, the order of discharge made under subsection (1) of this section and the provisions of subsections (2) and (3) of this section shall again apply to him for the residue of the term for which he was originally sentenced or committed.
Cf. 1964, No. 70, s. 28
In subs. (2) the word "Premier" was substituted for the words "Resident Commissioner" by s. 2(1) of the Niue Amendment Act 1974.
29. Appointment of officers of police and prisons - There may be appointed under the provisions of Part XXXI of this Act such officers of police and officers of prisons as the Commission considers necessary.
29A Penal Manual - The Cabinet may from time to time issue in the form of a Penal Manual instructions and directives to provide for-
(a) the administration of sentences imposed by the Court (whether involving imprisonment or not);
(b) the management and supervision of offenders placed in the custody or under the control of the Secretary for Justice;
(c) the administration of the prison or other detention centres;
(d) such other matters as are necessary or expedient for ensuring that full effect is given to decisions of the Court in criminal cases.
[Added 21/91/1984]
Education
30. Repealed by s. 2(1) of the Niue Amendment Act 1974.
PART II
THE LEGISLATIVE GOVERNMENT OF NIUE
31-44. Repealed by s. 2(1) of the Niue Amendment Act 1974.
45, 46. Repealed by s. 10(2) of the Niue Amendment Act 1971.
47. Repealed by s. 2(11) of the Niue Amendment Act 1974.
48. Publication of enactments in Niue Island Gazette - (1) [Subject to the provisions of any Act in that behalf, all enactments (other than Acts of the Niue Assembly), warrants, appointments, and other instruments] relative to the Government of Niue made or passed after the commencement of this Act shall, unless [the Cabinet of Ministers] otherwise directs, be published in the English language in Niue in an official Gazette, to be known as the Niue Island Gazette, and issued at such times and intervals as [the Cabinet of Ministers] directs.
(2) [Subject to the provisions of any Act in that behalf, all regulations] in force in Niue made after the commencement of this Act shall, unless [the Cabinet of Ministers] otherwise directs, also be published in the Niuean language in the Niue Island Gazette or some other official publication.
Cf. 1964, No. 70, s. 47A; 1965, No. 56, s. 5(1)
In subs. (1) the words in the first act of square brackets were substituted for the words "Subject to the provisions of any Ordinance in that behalf, Ordinances, regulations, Orders in Council, Proclamations, warrants, appointments and other instruments and Acts" by s. 2(1) of the Niue Amendment Act 1974, and the references to the Cabinet of Ministers were substituted for references to the Resident Commissioner by s. 2(2)(c) of that Act.
In subs. (2) the words in the first set of square brackets were substituted for the words "Subject to the provisions of any Ordinance in that behalf, all Ordinances and all regulations" by s. 2(1) of the Niue Amendment Act 1974, and the reference to the Cabinet of Ministers was substituted for a reference to the Resident Commissioner by s. 2(2)(c) of that Act.
Regulations
49. Repealed by s. 2(1) of the Niue Amendment Act 1974.
Village Councils
50. Village Councils - Subject to the provisions of this Part of this Act, [the Niue Assembly] may provide by [Act of the Niue Assembly] for and in relation to the establishment in any village in Niue of a Village Council with such constitution, membership, functions, and powers as may from time to time be prescribed by [Act of the Niue Assembly].
Cf. 1964, No. 70, s. 48A(1); 1965, No. 56, s. 5(1)
See Niue Village Council Ordinance 1967.
The reference to the Niue Assembly was substituted for a reference to the Island Assembly by s. 2(2)(d) of the Niue Amendment Act 1974, and the references to an Act of the Niue Assembly, wherever they occur, were substituted for references to an Ordinance by s. 2(2)(c) of that Act.
51. Village Council bylaws - Without limiting the generality of the powers conferred on [the Niue Assembly] by section 50 of this Act, the powers of a Village Council as aforesaid may include power to make bylaws for all or any such matters as may be specified by [Act of the Niue Assembly].
Cf. 1964, No. 70, s. 48A (2); 1965, No. 56, s. 5 (2)
The reference to the Niue Assembly was substituted for a reference to the Island Assembly by s. 2(2)(d) of the Niue Amendment Act 1974, and the reference to an Act of the Niue Assembly was substituted for a reference to an Ordinance by s. 2(2)(a) of that Act.
52. Validity and disallowance of bylaws - (1) Any bylaw which is in any respect repugnant to the provisions of any [Act of the Niue Assembly] or to any Act [of the Parliament of New Zealand] or regulations or law in force in Niue (whether made before or after the bylaw) shall be read subject to the [Act of the Niue Assembly] or Act [ of the Parliament of New Zealand] or regulations or law, and shall to the extent of that repugnancy and not otherwise, be and remain absolutely void and inoperative:
Provided that, except to the extent to which it is inconsistent with the provisions of any [Act of the Niue Assembly] or of any Act [of the Parliament of New Zealand] or regulations in force in Niue no bylaw and no provision of any bylaw shall be deemed to be repugnant for the purposes of this subsection solely on the ground that it deals with a matter already dealt with by any [Act of the Niue Assembly] or by any such Act [of the Parliament of New Zealand] or regulations or is repugnant to the law of England as established in Niue by section 672 of this Act.
(2) No bylaw made by a Village Council under this section shall become law until it has been assented to by the Cabinet.]
Cf. 1964, No. 70, s. 48A(3), (4); 1965, No. 56, s. 5(1)
In subs. (1) the references to an Act of the Niue Assembly, wherever they occur, were substituted for references to an Ordinance by s. 2(2)(c) of the Niue Amendment Act 1974, and the words "of the Parliament of New Zealand" wherever they occur, were inserted by s. 2(1) of that Act
Subs. (2) was substituted for the original subs. (2) by s. 2(1) of the Niue Amendment Act 1974.
PART III
THE HIGH COURT OF NIUE
Constitution of the High Court
53-61. Repealed by s. 2(1) of the Niue Amendment Act 1974.
62. Registrar and Deputy Registrar of the High Court - (1) There shall be a Registrar of the High Court, who shall be appointed under the provisions of Part XXXI of this Act.
(2) The Registrar shall keep the records of the High Court, and shall perform all such administrative duties in respect of that Court as [the Chief justice] may from time to time direct.
(3) There may also be appointed under the provisions of Part XXXI of this Act a Deputy Registrar of the High Court, who shall, subject to the control of the Registrar, possess, exercise, and perform the same powers, functions, and duties, as the Registrar; and every reference in this Act to a Registrar of the High Court shall, so far as applicable, extend and apply to the Deputy Registrar accordingly.
Cf. 1915, No. 40, ss. 109, 110; 1957, No. 103, s. 95(1)
In subs. (2) the reference to the Chief Justice was substituted for a reference to the Chief Judge by s. 2(2)(g) of the Niue Amendment Act 1974.
63. Administrative officers - There shall be appointed under the provisions of Part XXXI of this Act in respect of the High Court such sheriffs, bailiffs, clerks, interpreters, or other administrative officers as may be necessary.
Cf. 1915, No. 40, s. 110; 1957, No. 103, s. 95(1)
64. Seal of the High Court - The High Court shall have in the custody of each judge and Commissioner and the Registrar a seal of the Court, in such form or forms as [the Cabinet of Ministers] approves, for the scaling of all orders, warrants, records, and other instruments requiring to be sealed.
The reference to the Cabinet of Ministers was substituted for the words "Executive Committee" (as substituted by s. 11(1) of the Niue Amendment Act 1971) by s. 2(2)(a) of the Niue Amendment Act 1974.
65. Records of the High Court - The Registrar of the High Court shall keep proper books in which shall be entered minutes of all proceedings in the High Court, whether in its civil or criminal jurisdiction.
Cf. 1915, No. 40, s. 112
Jurisdiction of the High Court
66. Repealed by s. 2(1) of the Niue Amendment Act 1974.
67. Injunction, certiorari, mandamus and prohibition - (1) The High Court may exercise by way of order in the ordinary course of its civil procedure the same jurisdiction as that possessed and exercised for the time being by the Supreme Court of New Zealand by way or in lieu of injunction, certiorari, mandamus and prohibition, including the power of awarding damages in lieu of injunction.
(2) No such jurisdiction by way of mandamus, certiorari, or prohibition shall be exercised by the High Court as against the Land Court or the Land Appellate Court.
Cf. 1915, No. 40, s. 115; 1946, No. 30, s. 43
68. Habeas corpus - The High Court may, on the application of any person, make an order for the release of any person from unlawful imprisonment or detention, or for the production before the Court of any person alleged to be unlawfully imprisoned or detained, and every person who disobeys any such order shall be guilty of contempt of the High Court.
Cf. 1915, No. 40, s. 116
69. Custody of minors - (1) The High Court may, on the application of any person, from time to time make such order as it thinks fit with respect to the custody of any minor (being unmarried) by any parent or guardian of that minor.
(2) Where the Court is satisfied that the minor has no parent or guardian fit to have such custody, the Court may make such order as it thinks fit for the custody of the minor by any other person.
(3) The jurisdiction conferred by this section shall in all cases be exercised in such manner as the Court deems most conducive to the welfare of the minor.
Cf. 1915, No. 40, s. 117
Procedure of the High Court
70. Rules of Court - The practice and procedure of the High Court, whether in its civil or criminal jurisdiction, shall be as prescribed by enactment.]
Cf. 1915, No. 40, s. 118
This section was substituted for the original s. 70 by s. 2(1) of the Niue Amendment Act 1974.
71. Procedure so far as not governed by rules of Court - Subject to the provisions of this Act and of rules of Court, the practice and procedure of the High Court in the exercise of its civil and criminal jurisdiction shall be such as the Court thinks in each case to be most consistent with natural justice and convenience.
Cf. 1915, No. 40, s. 119
72. Forms - Subject to the provisions of this Act and to rules of Court, all statements of claim, informations, summonses, warrants, convictions, orders, recognisances, and other documents required or authorised in the course of the civil or jurisdiction of the High Court may be in such form as the Court or the judge, Registrar, or other officer by whom they are issued, made, or received thinks sufficient.
Cf. 1915, No. 40, s. 120
73. Summons to witnesses - A Judge or Registrar of the High Court may in any proceedings before the Court, whether civil or criminal, issue a summons to any person requiring him to appear before the Court at the time and place mentioned in the summons, there to give evidence in those proceedings or to produce any document to the Court in those proceedings.
Cf. 1915, No. 40, s. 121
74. Default of witness - Every person shall be guilty of contempt of the High Court who-
(a) Having been served with any such summons, neglects or fails without sufficient cause shown by him to appear or to produce any document which he is so required to produce; or
(b) Whether summoned to attend or not, is present in Court and, being required to give evidence or to produce any document then in his possession, refuses, without sufficient cause shown by him, to be sworn or to give evidence or to produce that document; or
(c) Having been sworn to give evidence in any proceedings, neglects or fails without sufficient cause shown by him to appear at such time as the Court directs for the purpose of giving further evidence in the proceedings.
Cf. 1915, No. 40, s. 122(1)
75. Commissioners to take evidence - (1) The High Court may, in any civil or criminal proceedings where it appears necessary for the purposes of justice, make an order for the examination m oath before any officer of the Court or any other person or persons, and at any place either in or out of Niue, of any witness or person and may order any deposition so taken to be filed in the Court, and may empower any party to the proceedings to give the deposition in evidence therein.
(2) Any person before whom any witness or person is to be examined in New Zealand pursuant to an order made under subsection (1) of this section shall, for the purpose of examining that witness or person, have in New Zealand all the powers of a Commission of Inquiry under the Commissions of Inquiry Act 1908, and all the provisions of that Act shall apply as if the examination any inquiry under that Act.
76. Evidence by affidavit sworn out of Niue - In any civil or criminal proceedings in the High Court an affidavit made out of Niue may, with the leave of the High Court, be received in evidence if made before a solicitor of the Supreme Court of New Zealand, or in any other manner which would make the affidavit admissible in civil proceedings in the Supreme Court of New Zealand under the law for the time being in force in New Zealand.
Cf. 1915, No. 40, s. 124
77. Witnesses may be ordered out of Court - The High Court may, if it thinks fit, at any time during any proceedings, whether civil or criminal, order all witnesses other than the witness under examination to go and remain outside the Court until required to give evidence; and any witness who disobeys any such order shall be guilty of contempt of the High Court.
Cf. 1915, No. 40, s. 125
78. Affidavits in Niue - (1) Affidavits in the High Court may be sworn in Niue before-
(a) A Commissioner of the High Court;
(b) A Solicitor of the Supreme Court of New Zealand;
(c) The Registrar of the High Court;
(d) A Postmaster;
(e) The Comptroller of Customs;
(f) Repealed by s 2(1) of the Niue Amendment Act 1974;
(g) A Medical Officer.
(2) The making of such affidavits shall be governed by the same rules as are in force for the time being with respect to affidavits in the Supreme Court of New Zealand.
Cf. 1915, No. 40, s. 126; 1965, No. 1, s. 3(1)
As to witnesses to consent to adoptions in relation to subs. (1), see 98(2) of the Niue Amendment Act (No. 2) 1968.
79. Evidence by affidavit - In any civil proceedings in the High Court evidence may be taken either orally or by affidavit, but in actions and other proceedings inter partes affidavits shall not be admissible without the leave of the Court.
Cf. 1915. No. 40. s. 127
80. Right of audience in the High Court - In any proceedings in the High Court, whether civil or criminal any party thereto may be represented either by a barrister or solicitor of the Supreme Court of New Zealand, or, with the leave of the Court, by any other agent, but any such leave may be at any time withdrawn.
Cf. 1915, No. 40, s. 128
81. Costs - In any civil proceedings in the High Court, the Court shall have power to make such order as it thinks just for the payment of the costs of the proceedings by or to any party thereto.
Cf. 1915, No. 40, s. 129
82. Security for costs - (1) In any civil proceedings and at any stage thereof, the High Court may require a plaintiff or applicant resident out of the jurisdiction of the High Court to deposit any sum of money as security for costs, and may stay pending the making that costs, it shall be disposed of in such manner as the Court directs.
Cf. 1915, No. 40, s. 130
83. Court fees - The scale of costs and Court fees to be paid in all civil or criminal proceedings in the High Court shall be as prescribed by enactment.]
Cf. 1915, No. 40, s. 131
This section was substituted for the original s. 83 by s. 2(1) of the Niue Amendment Act 1974.
84. Minutes of judgments - (1) Every judgment of the High Court shall be deemed to be complete when a minute thereof has been made in the record books of the Court and signed by a judge of the Court.
(2) When necessary, the judgment may at any time thereafter be drawn up under the seal of the Court.
Cf. 1915, No. 40, s. 132
85. Amendments - A judge of the High Court may at any time amend any minute or judgment of the Court or other record of the Court, in order to give effect to the true intent of the Court in respect thereof or truly to record the course of any proceedings.
Cf. 1915, No. 40, s. 133
86. Rehearing of civil proceedings - On application made at any time within 14 days after the date of any judgment given by the High Court in its civil jurisdiction, the Court may, if it thinks fit, rehear the matter, and may on the rehearing either affirm, reverse, or vary the judgment:
Provided that the Court may rehear the matter on an application made more than 14 days after the date of the judgment, if the Court is satisfied that the application could not reasonably be made sooner.
Cf. 1915, No. 40, s. 134
87. Rehearing of criminal proceedings - (1) Where on the hearing of any information the accused has been convicted, the High Court may, if it thinks fit, grant a rehearing of the information, either as to the whole matter or only as to the sentence, upon such terms as the Court thinks fit.
(2) When a rehearing has been granted, the conviction or, as the case may be, the sentence only shall immediately cease to have effect.
(3) If a rehearing is granted in any case where the accused was on conviction sentenced to a term of imprisonment that has not expired, but the hearing is not proceeded with immediately, the Court may, subject to the provisions of section 257 of this Act, remand the accused in custody until the date appointed for the rehearing.
(4) On any rehearing the Court shall have the same powers and shall follow the same procedure as if it were the first hearing.
(5) If the defendant does not appear on the date set down for the rehearing of any information, the Court may, if it thinks fit, without rehearing the case direct that the original conviction or sentence, as the case may be, shall be restored.
Execution of Judgments
88. Writs of sale and possession - (1) Where by any judgment of the High Court in its civil jurisdiction any person is ordered to pay any sum of money, the party to whom the money is payable may cause a writ of sale to be issued.
(2) Where by any judgment of the High Court any person is ordered to deliver possession of land or chattels, the party to whom the land or chattels are ordered to be delivered may cause a writ of possession to be issued.
89. Effect of writ of possession - A writ of possession shall authorise the officer to whom it is addressed to deliver to any party named in the writ possession of any land or of any chattels specified in the writ, and for that purpose to eject any other person from the land, or to seize and take possession of any such chattels.
Cf. 1915, No. 40, s. 136
90. Effect of writ of sale - (1) A writ of sale shall authorise the officer to whom it is directed to seize all the chattels (including money, cheques, bills of exchange, and other securities for money) of the person against whom it is issued, except wearing apparel, bedding, tools, and implements of trade, not exceeding in the aggregate [$100] in value.
(2) All chattels so seized may, unless the judgment is sooner satisfied, together with the costs of the execution, be sold or otherwise converted into money by the Registrar, and the proceeds of the sale or conversion, after payment there of the costs of the execution, shall be applied in satisfaction of the judgment.
Cf. 1915, No. 40, s. 137
91. Issue of writs of sale or possession - Every writ of sale or writ of possession shall be issued by the Registrar under the seal of the High Court, and shall be addressed to an officer of the Court or to a constable.
Cf. 1915, No. 40, s. 138
92. Charging orders - Any judgment of the High Court in its civil jurisdiction for the payment of any sum of money may be enforced by a charging order made by the Court against any real or personal property of the person by whom the money is payable (including debts and other money due or accruing due to that person, but not including the interest of a Niuean in any Niuean land). Any such charging order shall be made and shall have effect in manner provided by rules of Court.
Cf. 1915, No. 40, s. 139; 1950, No. 92, s. 11(3)
A definition of the term "Niuean land" in s. 2 of this Act was repealed by s. 102(1) of the Niue Amendment Act (No. 2) 1968. See ss. 2 and 102(2) of that Act.
93. Stay of execution- The High Court may in any civil proceedings stay the execution of any judgment for such term as the Court thinks fit.
Cf. 19 15, No. 40, s. 140
94. Judgment summons - (1) When judgment for the payment of any debt, damages, or other sum of money has been given by the High Court in its civil jurisdiction, the judgment creditor may at any time thereafter, in pursuance of the judgment, file in Court an application for an order under this section.
(2) A judge or the Registrar of the Court may thereupon issue a summons (hereinafter called a judgment summons) to the judgment debtor to show cause why an order should not be made against him for the payment of the amount of the judgment.
(3) On the hearing of the application, the Court may, if it thinks fit, make an order that the judgment debtor do pay to the judgment creditor the amount of the judgment debt forthwith, or at such time or by such instalments from time to time, as the Court thinks fit.
(4) Except where the judgment debtor fails to appear in Court in pursuance of the judgment summons, no such order shall be made, unless the Court is satisfied either-
(a) That the judgment debtor is of sufficient ability to pay the judgment debt in accordance with the terms of the order; or
(b) That the liability in respect of which judgment was given against him was incurred by fraud; or
(c) That before or after the date of the judgment the judgment debtor has made away with any property for the purpose of evading payment of the liability.
(5) If any judgment debtor disobeys any order made against him under this section, he shall be guilty of contempt of the High Court.
(6) Nothing in this section shall exclude any other lawful method of executing any such judgment.
Cf. 1915, No. 40, s. 141
95. Enforcement of judgments of High Court in Supreme Court of New Zealand - (1) Any person in whose favour any judgment whereby any sum of money is made payable has been obtained in civil proceedings in the High Court may cause a memorial thereof, authenticated by the seal of the High Court, to be filed in any office of the Supreme Court of New Zealand.
(2) Judicial notice may be taken by the Supreme Court of the seal of the High Court so affixed to any such memorial.
(3) Every such memorial shall set forth the names and additions of the parties to the proceedings in which the judgment was given, the form or nature of the proceedings, the date on which the judgment was given, and the amount payable thereunder.
(4) Every such memorial being so filed shall thenceforth be a record of the judgment, and execution may issue thereon with the leave of the Supreme Court, in the same manner as if the like judgment had been given by the Supreme Court, subject, however, to such terms and conditions as the Supreme Court may think fit to impose.
(5) Leave to issue execution may be given by the Supreme Court on the application of the party by whom the memorial was filed, and either ex parte or on notice to the party against whom execution is to be issued, as the Supreme Court thinks fit.
(6) Such leave shall not be granted, unless the Supreme Court is satisfied, by affidavit or otherwise,-
(a) That the person against whom execution is to be issued was resident or present in Niue at the commencements of the proceedings in which the judgment was given; or
(b) That the cause of action in the proceedings or some material part of that cause of action arose in Niue.
(7) Every such affidavit shall, if made in Niue, be sworn before a judge of the High Court or a Commissioner of the Supreme Court.
Cf. 1915, No. 40, s. 142
Absconding Debtors
96. Order of arrest of absconding debtor - Where in any action in the High Court for the recovery of any debt, damages, or other sum of money the plaintiff proves to the satisfaction of the Court, at any time before final judgment, that he has a good cause of action against the defendant to the amount of [$20] or upwards, and that there is probable cause for believing that the defendant is about to leave Niue unless he is apprehended, and that his absence from Niue will materially prejudice the plaintiff in the prosecution of his action, the Court may order the defendant to be arrested and imprisoned for a period not exceeding 3 months unless and until he sooner gives security to the satisfaction of the Court that he will not leave Niue without the leave of the Court.
Cf. 1915, No. 40, s. 143
96A. Commissioner and Justices authority - Any power conferred by this Act on the Court to make an order under Section 96 of this Act may be exercised by a Commissioner of the High Court or any two Justices of the Peace if at the time when the power is exercised there is not present in Niue a Judge who is able to exercise it.
[Added 2/59/1980]
97. Security to be given- The security to be so given shall, as the Court directs, be either the payment into Court of a sum not exceeding the amount claimed in the action or a bond executed by the defendant with one or 2 sureties in favour of Her Majesty in the like amount.
Cf. 1915, No. 40, s. 144
98. Enforcement of security - If after such security has been given the defendant leaves Niue without the leave of the Court, all money so paid into Court or recovered in pursuance of the bond shall become available as the Court directs for the satisfaction of any sum recovered in the action.
Cf. 1915, No. 40, s. 145
99. Arrest in actions for penalties - Where the action is for a penalty at the suit of the Crown, it shall not be necessary to prove that the absence of the defendant as aforesaid will materially prejudice the Crown in the prosecution of the action, and the security to be given shall be security that any sum recovered against the defendant in the action will be paid or that the defendant will be rendered to prison.
Cf. 1915, No. 40, s. 146.
100. Enforcement of security in actions for penalties - If, after such security has been given, any sum recovered in the action remains unpaid and the defendant is not rendered to prison as aforesaid, all money so paid into Court or recovered in pursuance of the bond shall become available as the Court directs for the satisfaction of the sum recovered in the action.
Cf. 1915, No. 40, s. 147
Contempt of the High Court
101. Contempt of Court defined - Every person is guilty of contempt of the High Court who-
(a) Disobeys any judgment or order of that Court, or of any Judge thereof, otherwise than by making default in the payment of a sum of money (other than a penalty) or compensation payable under the judgment or order; or
(b) Uses any abusive, insulting, offensive, or threatening words or behaviour in the presence or hearing of the Court; or
(c) Assaults, resists, or obstructs, or incites any other person to assault, resist, or obstruct, any constable or officer of the Court in serving any process of the Court, or executing any warrant of the Court or of a Judge thereof, or executing any judgment or order of the Court or of a Judge thereof; or
(d) By any words or behaviour obstructs in any manner the proper and orderly administration of justice in the Court; or
(e) Does any other thing which elsewhere in this Act or in any other Act is declared to be a contempt of the High Court; or
(f) Aids, abets, counsels, procures, or incites any other person to commit contempt of the High Court.
Cf. 19 15, No. 40, s. 148
102. Penalty for contempt - Every person who commits contempt of the High Court is liable to imprisonment for a term not exceeding 6 months or a fine not exceeding [$100].
Cf. 19 15, No. 40, s. 149
103. Jurisdiction in contempt - The offence of contempt of the High Court shall be punishable by the High Court either-
(a) In the ordinary course of the criminal jurisdiction of that Court; or
(b) In accordance with the provisions of section 104 of this Act.
Cf. 1915, No. 40, s. 150
104. Contempt in the face of the Court - (1) If the contempt is committed in the presence or hearing of the Court, any Judge then and there sitting in Court may, without order or warrant, direct any constable, officer of the Court, or other person to arrest the person so guilty of contempt and to bring him before the court.
(2) The Court may thereupon, after giving the person so arrested a reasonable opportunity of being heard in his defence, either commit him to prison for a term not exceeding 6 months or order him to pay a fine not exceeding [$100].
Cf. 1915, No. 40, s.151
105. Discharge of persons in contempt - A person imprisoned for contempt, or for default in payment of a fine imposed upon him for contempt, may be at any time discharged; and any fine so imposed may be at any time remitted in whole or in part, either by order of the Court or by warrant under the hand of [the Cabinet of Ministers].
The reference to the Cabinet of Ministers was substituted for a reference to the Resident Commissioner by s. 2(2)(c) of the Niue Amendment Act 1974.
PART IV
THE SUPREME COURT OF NEW ZEALAND
Jurisdiction of the Supreme Court in Niue
106. Civil jurisdiction of Supreme Court extends to Niue - (1) Notwithstanding anything in this Act, the civil jurisdiction of the Supreme Court of New Zealand shall extend to Niue, and may be exercised in New Zealand in respect of Niue in the same manner in all respects as if Niue were for all purposes part of New Zealand.
(2) Any action or other civil proceedings in the Supreme Court which relate in any manner to Niue and which might have been instituted in the High Court of Niue may, on the application of any party thereto, be stayed by the Supreme Court in its discretion, on such terms as the Court thinks fit, if in the opinion of that Court, having regard to the interest of all parties thereto, the action or other proceedings could more conveniently be instituted in the High Court.
(3) No writ of summons or other originating civil process m the Supreme Court shall be served in Niue without the leave of a judge of that Court, and the order by which leave is granted may determine the time within and the place at which a defendant is to file his statement of defence, and the sitting of the Court at which the action is to be heard, or may give such other directions with respect to the procedure on the writ or process as may be appropriate to the case.
Cf. 1915, No. 40, s. 153
See Tangata [1979] 2NZLR 182
107. Jurisdiction under the Declaratory Judgments Act 1908 - The jurisdiction conferred upon the Supreme Court by the Declaratory Judgments Act 1908 shall extend to declaratory judgments or orders relating to the laws of Niue in the same manner in all respects as to declaratory judgments or orders relating to the laws of New Zealand.
Cf. 1915, No. 40, s. 154
108. Criminal jurisdiction of Supreme Court in respect of Niue - (1) Notwithstanding anything in this Act, the criminal jurisdiction of the Supreme Court of New Zealand shall extend to acts done or omitted in Niue which, if done or omitted in New Zealand, would be indictable offences, and may be exercised in New Zealand in respect of such offences accordingly in the same manner as if they were indictable offences committed in New Zealand.
(2) Except in the case of an offence in respect of which, pursuant to the Crimes Act 1961, the Supreme Court has jurisdiction notwithstanding that the offence was committed outside New Zealand, the jurisdiction conferred by subsection (1) of this section shall be exercised only over persons found in New Zealand.
(3) In respect of any offence which is within the jurisdiction of the Supreme Court under this section the like preliminary proceedings before justices of the Peace or a Stipendiary Magistrate may be taken in New Zealand as in the case of indictable offences committed in New Zealand.
(4) The punishment to be imposed by the Supreme Court for any such offence (not being an offence in respect of which, pursuant to the Crimes Act 1961, the Supreme Court has jurisdiction as aforesaid) shall be that which is provided for that offence by the laws of Niue.
(5) No prosecution in New Zealand for an offence committed in Niue (not being an offence in respect of which, pursuant to the Crimes Act 1961, the Supreme Court has jurisdiction as aforesaid) shall be commenced without the leave of the Attorney-General.
Cf. 1915, No. 40, s. 155
Cases Stated by the High Court or Land Court or Land Appellate Court
109. High Court or Land Court or Land Appellate Court may state a case for the Court of Appeal - (1) The High Court or the Land Appellate Court, or, with the sanction of [the Chief Justice], the Land Court, may in any proceedings pending before it, whether civil or criminal, either on the application of any party or of its own motion, state a case on any question of law for determination by the [Court of Appeal] of New Zealand.
(2) The determination by the [Court of Appeal] of any case so stated shall be binding on the High Court, the Land Appellate Court, or the Land Court, as the case may be.
(3) Repealed by s. 2(1) of the Niue Amendment Act 1974.
(4) Every case so stated shall be under the seal of the High Court, the Land Appellate Court, or the Land Court, as the case may be, and shall be filed by the Registrar in the office of the [Court of Appeal].
(5) The Registrar of the [Court of Appeal] shall thereupon set down the case for hearing at some convenient sitting of the [Court of Appeal].
(6) The determination of the [Court of Appeal] shall be embodied in an order, and a duplicate of that order under the seal of the Court shall be transmitted by the Registrar of that Court to the Registrar of the High Court or of the Land Appellate Court or of the Land Court, as the case may be.
(7) In and by that order the [Court of Appeal] may fix and award the costs of the argument and determination of the special case, and the High Court, the Land Appellate Court, or the Land Court, as the case may be, shall by judgment or order give effect to the order so made by the [Court of Appeal].
(8) The [Court of Appeal] may send back for amendment any case so stated by the High Court, the Land Appellate Court, or the Land Court.
In subs. (1) the reference to the Chief Justice was substituted for a reference to the Chief Judge by s. 2(2)(g) of the Niue Amendment Act 1974.
In subss. (1), (2), (5), (6), (7), and (8) the words "Court of Appeal" wherever they occur, were substituted for the words "Supreme Court," and in subs. (4) the words "Court of Appeal" were substituted for the words "Supreme Court at Auckland", by s. 2(1) of the Niue Amendment Act 1974.
Cases Stated by Supreme Court for Land Appellate Court
110. Supreme Court may state case for Land Appellate Court - (1) If any question of fact or of Niuean custom or usage relating to the interests of Niuean in any land or in any personal property arises in the Supreme Court of New Zealand, it shall be competent for that Court to cause a case to be stated and to refer it to the Land Appellate Court.
(2) The Land Appellate Court shall forthwith proceed to determine the case so referred to it, and shall transmit a certificate of its opinion thereon to the Supreme Court.
(3) The Supreme Court may refer back any question so determined to the Land Appellate Court for further consideration.
(4) The opinion of the Land Appellate Court on any case so stated by the Supreme Court may, if the Supreme Court thinks fit, be accepted as an authoritative determination of, the question so referred.
Cf. 1946, No. 30, s. 39; 1950, No. 92, s. 11(3)
Appeals from the High Court
111, 112. Repealed by s. 2(1) of the Niue Amendment Act 1974.
113. Transmission of record - [Where an appeal is made to the Court of Appeal of New Zealand, pursuant to Article 51 of the Constitution, against a final judgment of the High Court,] a copy of the record of the proceedings in which the judgment appealed against was given, (including the reasons for the judgment, and, where necessary, a statement of the facts or of the evidence) shall be prepared by the appellant and transmitted by the Registrar of the High Court under the seal of that Court to the Registrar of the [Court of Appeal].
Cf. 1915, No. 40, s. 159.
The words in the first act of square brackets were substituted for the words "On the scaling of the order granting leave to appeal" and the words "Court of Appeal" were substituted for the words "Supreme court of New Zealand at Auckland", by s. 2(1) of the Niue Amendment Act 1974.
114. Dismissal of appeal for non-prosecution - If the appellant does not prosecute his appeal with due diligence, the respondent may apply either to the High Court or to the [Court of Appeal] for an order dismissing the appeal for non-prosecution; and, if such an order is made by either Court, the costs of the appeal and the security entered into by the appellant shall be dealt with in such manner as that Court may direct.
Cf. 1915, No. 40, s. 160
The words "Court of Appeal" were substituted for the words "Supreme Court" by s. 2(1) of the Niue Amendment Act 1974.
115. Procedure on appeal - The procedure on the hearing of any such appeal and in all matters incidental to any such appeal, whether in the High Court or in [the Court of Appeal shall, subject to this Act, be determined by the rules of the High Court or the Court of Appeal, as the case may be,] and in default of such regulations, or so far as they, do not extend, shall be determined in such manner as the Court thinks fit.
Cf. 1915, No. 40, s. 161; 1965, No. 1, s. 3(1)
The words in square brackets were substituted for the words “the Supreme Court shall, subject to this Act” be determined by regulations made under this Act s.2(1) of the Niue Amendment Act 1974
116. Repealed by s. 2(1) of the Niue Amendment Act 1974.
117. Powers of Court of Appeal on Appeal - (1) On any appeal from the High Court, the [Court of Appeal may affirm, reverse, or vary the judgment appealed from, or may order a new trial, or may make any such order with respect to the appeal as the [Court of Appeal] thinks fit, and may award such costs as it thinks fit to or against any party to the appeal.
(2) Without limiting the general powers conferred by subsection (1) of this section, the [Court of Appeal] on any appeal against sentence, if it thinks that a different sentence should have been passed, shall quash the sentence passed and pass such other sentence warranted by law (whether more or less severe) in substitution therefore as the Court thinks ought to have been passed, and in any other case shall dismiss the appeal.
Cf. 1915, No. 40, s. 163; 1956, No. 27, s. 5; 1965, No. 1, s. 3(1)
In subss. (1) and (2) the words "Court of Appeal", wherever they occur were substituted for the words "Supreme Court " by s. 2(1) of the Niue Amendment Act 1974.
118. Evidence on appeal-Every such appeal shall, so far as it relates to any question of fact, be determined by the [Court of Appeal] by reference to the evidence heard at the trial as certified to the [Court of Appeal] under the seal of the High Court, and no further evidence shall, without the leave of the [Court of Appeal], be heard or admitted.
Cf. 1915, No. 40, s. 164.
The words "Court of Appeal", wherever they occur, were substituted for the words "Supreme Court" by s. 2(1) of the Niue Amendment Act 1974.
119. Stay of execution - An appeal to the [Court of Appeal] of New Zealand shall not operate as a stay of execution, unless the High Court or the [Court of Appeal] otherwise orders.
Cf. 1915, No. 40, s. 165; 1956, No. 27, s. 6; 1963, No. 132, s. 8(2)(a)
The words "Court of Appeal", wherever they occur, were substituted for the words "Supreme Court" by s. 2(1) of the Niue Amendment Act 1974.
120. Release of appellant from custody - (1) [When an appeal is made to the Court of Appeal of New Zealand from any conviction in the High Court], the High Court may, if it thinks fit, release the appellant from custody on bail pending the determination of the appeal.
(2) Any person so released on bail may be at any time, and for any reason which the High Court thinks sufficient, arrested by warrant and committed to prison, there to undergo his sentence.
(3) Any period during which an appellant has been so at large on bail shall not be computed as part of the term of imprisonment to which he has been sentenced.
Cf. 1915, No. 40, s. 166
In subs. (1) the words in square brackets were substituted for the words "When leave to appeal to the Supreme Court of New Zealand from any conviction is granted by the High Court" by s. 2(1) of the Niue Amendment Act 1974.
121. Appeal not to be allowed for irregularities in procedure - No judgment of the High Court shall, on appeal to the [Court of Appeal] of New Zealand, be set aside on the ground of any error or irregularity in the proceedings of the High Court, or on the ground of any defect of form or substance in the judgment, unless the [Court of Appeal] is of opinion that the proceedings of the High Court were not in conformity with natural justice or that a substantial miscarriage of justice has taken place.
Cf. 1915, No. 40, s. 167
The words "Court of Appeal", wherever they occur, were substituted for the words "Supreme Court" by s. 2(1) of the Niue Amendment Act 1974.
122. Right of audience on appeal - On every case stated for the [Court of Appeal] of New Zealand, and in every appeal to that Court, the parties may either appear in person or be represented by a barrister of the Supreme Court, or may submit their arguments to the [Court of Appeal] in writing.
Cf. 19 15, No. 40, s. 168
The words "Court of Appeal", wherever they appear, were substituted for the words "Supreme Court by s. 2(1) of the Niue Amendment Act 1974.
123. Transmission of order of Court of Appeal on appeal - The determination of the [Court of Appeal] on any appeal from the High Court shall be transmitted to the Registrar of the High Court by the Registrar of the [Court of Appeal] under the seal of that Court, and judgment shall thereupon be entered in the High Court in conformity with that determination, or such other proceedings by way of a new trial or otherwise shall be taken in the High Court as are required by the determination.
Cf. 1915, No. 40, s. 169
The words "Court of Appeal", wherever they occur, were substituted for the words "Supreme Court by s. 2(1) of the Niue Amendment Act 1974.
124. Repealed by s. 2(1) of the Niue Amendment Act 1974.
125. No certiorari, mandamus, or prohibition - The Supreme Court shall not exercise control over any Court in Niue (whether in respect of want of jurisdiction or otherwise) by way of certiorari, mandamus, or prohibition, or in any other manner....
The words "save by way of appeal in accordance with the provisions of this Act in that behalf" were omitted by s. 2(1) of the Niue Amendment Act 1974.
Enforcement in Niue of Judgments of New Zealand Courts
126. Judgments of Supreme Court or Magistrate's Court in New Zealand may be enforced by the High Court - (1) Any person in whose favour any judgment whereby any sum of money is c payable has been obtained in the Supreme Court of New Zealand or in a Magistrate's Court in New Zealand in civil proceedings may cause a memorial thereof, authenticated by the seal of the Supreme Court or of the Magistrate's Court, as the case may be, to be filed in the High Court.
(2) Judicial notice may be taken by the High Court of the seal of the Supreme Court or Magistrate's Court so affixed to any such memorial.
(3) Every such memorial shall set forth the names and additions of the parties to the proceedings in which the judgment was given, the form or nature of the proceedings, the date on which the judgment was given, and the amount payable thereunder.
(4) Every such memorial being so filed shall thenceforth be a record of the judgment, and execution may issue thereon with the leave of the High Court in the same manner as if the like judgment had been given by the High Court, subject to such terms and conditions as the High Court may think fit to impose.
(5) Leave to issue such execution may be given by the High Court on the application of the party by whom the memorial was filed, and either ex parte or on notice to the party against whom execution is to be issued, as the High Court thinks fit.
Cf. 1915, No. 40, s. 173
127. Enforcement of judgments of Supreme Court by High Court by way of proceedings for contempt - (1) When by any judgment of the Supreme Court of New Zealand any person has been ordered to do or abstain from doing any act in Niue other than the payment of money, the Supreme Court may then or at any time thereafter direct a memorial of the judgment under the seal of the Court to be filed in the High Court.
(2) On the filing of such a memorial, any disobedience to the judgment, whether before or after the filing of the memorial, shall be deemed to be a contempt of the High Court.
Cf. 1915, No. 40, s. 174
Commissioners of the Supreme Court
128. Commissioners of the Supreme Court may be appointed in Niue - Sections 47 to 49 of the Judicature Act 1908 (relating to Commissioners to administer oaths) shall in New Zealand be construed and operate as if Niue were a place beyond the jurisdiction of the Supreme Court within the meaning of section 47 aforesaid, and Commissioners in Niue may be appointed by a judge of the Supreme Court accordingly.
Cf. 1915, No. 40, s. 175
PART V
CRIMINAL OFFENCES
129. Seditious offences defined - (1) A seditious intention is an intention to excite disaffection against Her Majesty, or against the Parliament or Government of New Zealand, or against the Government of Niue, or to excite such hostility or ill will between different classes of the inhabitants of Niue as may be injurious to the public welfare, or to incite encourage, or procure lawlessness, violence, or disorder in. Niue, or to procure otherwise than by lawful means the alteration of any matter affecting the laws, Government, or constitution of Niue:
Provided that no one shall be deemed to have a seditious intention only because he intends in good faith -
(a) To show that Her Majesty has been misled or mistaken in her measures; or
(b) To point out errors or defects in the Parliament or Government of New Zealand or in the Government of Niue; or to incite the inhabitants of Niue to attempt to procure by lawful means the alteration of any matter affecting the laws, government, or constitution of Niue; or
(c) To point out, with a view to their removal, matters producing or having a tendency to produce hostility or ill will between different classes of the inhabitants of Niue.
(2) Seditious words are words expressive of a seditious intention.
(3) A seditious libel is a libel expressive of a seditious intention.
(4) A seditious conspiracy is an agreement between 2 or more persons to carry into execution a seditious intention.
Cf. 1915, No. 40, s. 177A(1)-(5); 1950, No. 92, s. 12
130. Punishment of seditious offences - Every person is liable to imprisonment for a term not exceeding 2 years who speaks any seditious words, or publishes a seditious libel, or is a party to a seditious conspiracy.
Cf. 1915, No. 40, s. 177A(5); 1950, No. 92, s. 12
131. Homicide defined - Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.
Cf. 1915, No. 15, s. 178; 1957, No. 103, s. 87
132. Killing of a child - (1) A child becomes a human being within the meaning of this Act when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, whether it has an independent circulation or not and whether the navel string is severed or not.
(2) The killing of such a child is homicide if it dies in consequence of injuries received before, during, or after birth.
Cf. 1915, No. 40, s. 179; 1957, No. 103, s. 87
133. Culpable homicide - (1) Homicide may be either culpable or not culpable.
(2) Homicide is culpable when it consists in the killing of any person -
(a) By an unlawful act; or
(b) By an omission without lawful excuse to perform or observe any legal duty; or
(c) By both combined; or
(d) By causing that person by threats or fear of violence, or by deception, to do an act which causes his death; or
(e) By wilfully frightening that person, if he is a child under the age of 16 years or is sick or infirm.
(3) Culpable homicide is either murder or manslaughter.
(4) Homicide that is not culpable is not an offence.
Cf. 1915, No. 40, s. 180; 1957, No. 103, s. 87
134. Murder defined - Culpable homicide is murder in each of the following cases:
(a) If the offender means to cause the death of the person killed;
(b) If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not;
(c) If the offender mean to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he does not mean to hurt the person killed;
(d) If the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills any person though he may have desired that his object should be effected without hurting anyone.
Cf. 1915, No. 40, s. 180A; 1957, No. 103, s. 87
See s. 135(2)(a) of this Act
135. Further definition of murder - (1) Culpable homicide is also murder in each of the following cases, whether the offender means or does not mean death to ensue, or knows or does not know that death is likely to ensue:
(a) If he means to inflict grievous bodily injury for the purpose of facilitating the commission of any of the offences mentioned in subsection (2) of this section, or the flight of the offender upon the commission or attempted commission thereof, or for the purpose of resisting lawful apprehension in respect of any other offence whatsoever, and death ensues from such injury;
(b) If he administers any stupefying or overpowering thing for any of the purposes aforesaid, and death ensues from the effects thereof;
(c) If he by any means wilfully stops the breath of any person for any of the purposes aforesaid, and death ensues from such stopping of the breath.
(2) The offences referred to in subsection (1) of this section are those within the meaning of the following provisions of this Act, namely: -
(a) Section 134 (murder);
(b) Section 158 (resisting a constable in the execution of his duty or any person acting in aid of any constable;
(c) Section 159 (abduction of girl under 15);
(d) Section 162 (rape);
(e) Sections 184 to 186 (escape or rescue from prison or lawful custody);
(f) Section 195 (robbery);
(g) Section 204 (burglary);
(h) Section 212 (arson).
Cf. 1915, No. 40, s. 180B; 1957, No. 103, s. 87
136. Provocation- (1) Culpable homicide that would otherwise be murder may be reduced to manslaughter if the person who caused the death did so under provocation.
(2) Anything done or said may be provocation if -
(a) In the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the person charged, of the power of self-control; and
(b) It did in fact deprive the person charged of the power of self-control and thereby induced him to commit the act of homicide.
(3) Whether there is any evidence of provocation is a question of law.
(4) Whether, if there is evidence of provocation, the provocation was sufficient as aforesaid, and whether it did in fact deprive the person charged of the power of self-control and thereby induced him to commit the act of homicide, are questions of fact.
(5) No one shall be held to give provocation to another by lawfully exercising any power conferred by law, or by doing anything which the person charged incited him to do in order to provide the person charged with an excuse for killing or doing bodily harm to any person.
(6) This section shall apply in any case where the provocation was given by the person killed, and also in any case where the person charged, under provocation given by one person, by accident or mistake killed another person.
(7) The fact that by virtue of this section one party to a homicide has not been or is not liable to be convicted of murder shall not affect the question whether the homicide amounted to murder in the case of any other party to it.
Cf. 1915, No. 40, s. 180c; 1957, No. 103, s. 87
137. Illegal arrest may be evidence of provocation - An arrest shall not necessarily reduce the offence from murder to manslaughter because the arrest was illegal; but if the illegality was known to the person charged it may be evidence of provocation.
Cf. 1915, No. 40, s. 180D; 1957, No. 103, s. 87
138. Punishment of murder - Every one who commits murder shall upon conviction thereof be sentenced to imprisonment for life.
Cf. 1915, No. 140, s. 180E; 1962, No. 40, s. 3
139. Manslaughter - Culpable homicide not amounting to murder is manslaughter.
Cf. 1915, No. 40, s. 180F; 1957, No. 103, s. 87
140. Punishment of manslaughter - Every one who commits is liable to imprisonment for a term not exceeding 14 years.
Cf. 1915, No. 40, s. 18OG; 1957, No. 103, s. 87.
141. Omissions dangerous to life - Every one who undertakes, whether by a legally binding contract or otherwise, to do any act the omission of which is or may be dangerous to life is under a legal duty to do that act, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.
Cf. 1915, 1 No. 40, s. 181
142. Duty to provide the necessaries of life - (1) Every one who has charge of any other person unable, by reason of detention, age, sickness, insanity, or any other cause, to withdraw himself from such charge, and unable to provide himself with the necessaries of life, is (whether such charge is undertaken by him under any contract or is imposed upon him by law or by reason of his unlawful act or otherwise howsoever) under a legal duty to supply that person with the necessaries of life, and is criminally responsible for omitting without lawful excuse to perform such duty if the death of that person is caused, or if his life is endangered or his health permanently injured, by such omission.
(2) Every one is liable to imprisonment for a term not exceeding 7 years who, without lawful excuse, neglects the duty specified in this section so that the life of the person under his charge is endangered or his health permanently injured by such neglect.
Cf. 1915, No. 40, s. 182
143. Duty of parent or guardian to provide necessaries- (1) Every one who as a parent or person in place of a parent is under a legal duty to provide necessaries for any child under the age of 16 years, being a child in his actual custody, is criminally responsible for omitting without lawful excuse to do so, whether the child is helpless or not, if the death of the child is caused, or. if his life is endangered or his health permanently injured, by such omission.
(2) Every one is liable to imprisonment for a term not exceeding 7 years who, without lawful excuse, neglects the duty specified in this section so that the life of the child is endangered or his health permanently injured by such neglect.
Cf. 19157 No. 40, s. 182
144. Liability of persons having charge of dangerous things - Every one who has in his charge or under his control anything whatever, whether animate or inanimate, or who erects, makes, or maintains anything whatever, which in the absence of precaution or care may endanger human life is under a legal duty to take reasonable precautions against and to use reasonable care to avoid such danger, and is criminally responsible for the consequences of omitting without lawful excuse to perform that duty.
Cf. 1915, No. 40, s. 183
145. Hastening death - Every one who hastens the death of any person from any disease or disorder from which he is deemed to have caused the death of that person
146. Indirect cause of death - Every one whose act or omission results in the death of any person shall be deemed to have caused his death, although the immediate cause of death is the act or omission of some other person or some other independent intervening event.
Cf. 19 15, No. 40, s. 185
147. Attempted murder - Every one who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years.
Cf. 1915, No. 40, s. 186; 1962, No. 40, s. 4(b)
148. Conspiracy and inciting to murder - Every one is liable to imprisonment for a term not exceeding 10 years, who -
(a) Conspires with any person to murder any person; or
(b) Incites any person to commit murder.
Cf. 1915, No. 40, s. 187
149. Counselling suicide - Every one is liable to imprisonment for a term not exceeding 14 years who counsels or procures any person to commit suicide, if that person actually commits suicide in consequence, or who aids or abets any person in the commission of suicide.
Cf. 1915, No. 40, s. 189; 1962, No. 40, s. 4(c)
150. Concealment of birth - Every one is liable to imprisonment for a term not exceeding 2 years who disposes of the dead body of any child in any manner with intent to conceal the fact that its mother was delivered of it, whether the child died before, or during, or after birth.
Cf. 1915, No. 40, s. 190
151. Grievous bodily harm - Every one is liable to imprisonment for a term not exceeding 7 years who wilfully and without lawful justification causes grievous bodily harm to any person.
Cf. 1915, No. 40, s. 191
As to an offence under this section being a ground of divorce in Tokelau, see the Tokelau Divorce Regulations 1975 S.R. 1975/262/4 (3)(e)).
152. Actual bodily harm - Every one is liable to imprisonment for a term not exceeding 2 years who wilfully and without lawful justification causes actual bodily harm to any person.
Cf. 1915, No. 40, s. 192
153. Omissions resulting in bodily harm - Every one is liable to imprisonment for a term not exceeding 2 years who by any act or omission causes bodily harm to any person under such circumstances that, if death had been caused, he would have been guilty of manslaughter.
Cf. 1915, No. 40, s. 193
154. Intentionally endangering persons on aerodromes, etc. - Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to injure or endanger the safety of any person on any aerodrome or in any aircraft-
(a) Places an upon or across any aerodrome; or
(b) Does any act likely to interfere with, injure, endanger, or obstructs any aircraft; or
(c) Shoots or throws anything at any person in any aircraft or at, into, or upon, or causes anything to come in contact with, any aircraft; or
(d) Does anything whatever to any part of any aerodrome or to any machinery or signal belonging to or near to any aerodrome or to any aircraft on, or about to land on or take off from, any aerodrome; or
(e) Deals in any way with any signal or light m or near to any aerodrome, or makes or shows any false signal or light or makes any sign whatever m or near to any aerodrome; or
(f) Wilfully omits to do any act which it is his duty to do.
Cf. 1915, No. 40, s. 193A; 1957, No. 103, s. 89(1)
155. Wantonly endangering persons on or near aerodromes, etc. - Every one is liable to imprisonment for a term not exceeding 2 years who unlawfully and wilfully, in a manner likely to injure or endanger the safety of any person on any aerodrome or in any aircraft, -
(a) By any act, omission, or neglect endangers or obstructs any aircraft; or
(b) Does any act likely to interfere with or to cause injury to any aircraft; or
(c) Shoots or throws anything at any person in any aircraft or at, into, or upon, or causes anything to come in contact with, any aircraft; or
(d) Does anything whatever to any part of any aerodrome or to any machinery or signal belonging to or near to any aerodrome or to any aircraft on, or about to land on or take off from, any aerodrome; or
(e) Deals in any way with any signal or light on or near to any aerodrome, or makes or shows any false signal or light or makes any sign whatever on or near to any aerodrome; or
(f) By any culpable neglect of duty endangers the safety of any person conveyed in any aircraft.
Cf. 1915, No. 40, s. 193B; 1957, No. 103, s. 89(1)
156. Indecent assault - Every one who indecently assaults any woman or girl is liable to imprisonment for a term not exceeding 5 years.
Cf. 1915, No. 40, s. 194
157. Assault - Every one who commits an assault on any person is liable to imprisonment for a term not exceeding one year.
157A. Cruelty to a child - Every one is liable to imprisonment for a term not exceeding 5 years who, having the custody, control, or charge of a child under the age of 16 years, wilfully illtreats or wilfully neglects the child, or wilfully permits the child to be illtreated or neglected, in a manner likely to cause the child unnecessary suffering, actual bodily harm, injury to health, or mental disorder, or to incur any other unnecessary physical or mental disability.]
This section was inserted by s. 21 of the Niue Amendment Act 1971. See s. 135(2)(b) of this Act.
158. Resisting constable in execution of his duty - Every one is liable to for a term not exceeding 6 months or to a fine not exceeding [$40] who resists or assaults or wilfully obstructs, or incites or encourages any person to resist or assault or obstruct, any constable in the execution of his duty, or any person acting in aid of any constable.
Cf. 1921, No. 14, s. 4
159. Abduction of girl under 15 - (1) Every one is liable to imprisonment for a term not exceeding 2 years who, without the consent of the father or mother or other person having lawful charge of an unmarried girl under the age of 15 years, or without other lawful authority (the proof whereof shall lie on him), takes that girl or causes her to be taken out of the possession of her father or mother or such other person as aforesaid.
(2) It shall be no defence in a prosecution for an offence against this section that the girl was taken with her own consent, or at her own suggestion, or that the offender believed the girl to be of or over the age of 15 years.
(3) No proceedings for an offence against this section shall be taken in the event of the subsequent intermarriage of the offender and the girl in respect of whom the offence has been committed.
Cf. 1921, No. 14, s. 5
See s. 135(2)(c) of this Act
160. Abduction of children - (1) Every one is liable to imprisonment for a term not exceeding 2 years who, with intent to deprive any parent or guardian or other person having the lawful charge of any child under the age of 14 years of the possession of that child, unlawfully-
(a) Takes or entices away or detains the child; or
(b) Receives the child knowing it to have been so dealt with.
(2) Nothing in this section shall extend to any one who gets possession of any child claiming in good faith a right to the possession of the child.
Cf. 1915, No. 40, s. 214
161. Sexual intercourse defined - For the purposes of this Part of this Act, sexual intercourse is complete upon penetration; and there shall be no presumption of law that any person is by reason of his age incapable of such intercourse.
162. Rape - (1) Rape is the act of a male person having sexual intercourse with a woman or girl-
(a) Without her consent; or
(b) With consent extorted by threats or fear of bodily harm; or
(c) With consent obtained by personating her husband; or
(d) With consent obtained by false and fraudulent representations as to the nature and quality of the act.
(2) Every one who commits rape is liable to imprisonment for a term not exceeding 14 years.
(3) Every one is liable to imprisonment for a term not exceeding 10 years who attempts to commit rape or who assaults any person with intent to commit rape.
(4) Notwithstanding anything in subsection (1) of this section, no man shall be convicted of rape of attempting to rape or assaulting with intent to commit rape in respect of his wife, unless at the time of the intercourse or attempt-
(a) There was in force in respect of the marriage a decree nisi of divorce or a decree of nullity granted in New Zealand, and the parties had not, since the making of the decree, resumed cohabitation as man and wife with the free consent of the wife; or
(b) There was in force in respect of the marriage a decree of judicial separation granted in New Zealand or a separation order granted in Niue or in New Zealand or in the Cook Islands.
Cf. 1915, No. 40, s. 196; 1962, No. 40, s. 4(d)
See s. 135(2) (d) of this Act
In its application to Tokelau, subs. (4)(b) was modified by the addition of the words "or in Tokelau” by regulation 2(2)(b) of the Tokelau Crimes Regulations 1975 (S.R. 1975/279).
163. Sexual intercourse or indecency with girl under 12 - (1) Every one is liable to imprisonment for a term not exceeding 10 years who-
(a) Has sexual intercourse with any girl under the age of 12 years; or
(b) Attempts to have sexual intercourse with a girl under the age of 12 years; or
(c) Indecently assaults any girl under the age of 12 years; or
(d) Being a male, does any indecent act with or upon any girl under the age of 12 years; or
(e) Being a male, induces or permits any girl under the age of 12 years to do any indecent act with or upon him.
(2) It is no defence to a charge under this section that the girl consented, or that the person charged believed that she was of or over the age of 12 years.
(3) The girl shall not be charged as a party to an offence committed upon or with her against this section.
Cf. 1915, No. 40, s. 197
164. Sexual intercourse or indecency with girl between 12 and 15 - (1) Every one is liable to imprisonment for a term not exceeding 3 years who-
(a) Has or attempts to have sexual intercourse with any girl of or over the age of 12 years and under the age of 15 years, not being his wife; or
(b) Indecently assaults any such girl; or
(c) Being a male, does any indecent act with or upon any such girl; or
(d) Being a male, induces or permits any such girl to do any indecent act with or upon him.
(2) It is no defence to a charge under this section that the girl consented, or that the person charged believed that the girl was of or over the age of 15 years.
(3) The girl shall not be charged as a party to an offence committed upon or with her against this section.
Cf. 1915, No. 40, s. 198
165. Sexual intercourse with woman or girl who h an idiot or imbecile or of unsound mind - Every one is liable to imprisonment for a term not exceeding 2 years who has or attempts to have sexual intercourse with any woman or girl who is an idiot or an imbecile or of unsound mind, if he knows or has good reason, to believe that she is an idiot or an imbecile or of unsound mind.
Cf. 19 15, No.. 40, s. 199
166. Procuring miscarriage of woman or girl - Every one is liable to imprisonment for a term not exceeding 2 years who, with intent to procure the miscarriage of any woman or girl, unlawfully administers to or causes to be taken by her any poison or any drug or other noxious thing, or unlawfully uses any instrument or other means whatsoever with the like intent.
Cf. 1915, No. 40, s. 202
167. Act of woman or girl procuring her own miscarriage - Every woman or girl is liable to imprisonment for a term not exceeding one year who, whether with child or not, unlawfully administers to herself or permits to be administered to her any poison or any drug or other noxious thing, or unlawfully uses on herself or permits to be used on her any instrument or other means whatsoever, with intent to procure miscarriage
Cf. 1915, No. 40, s. 203
168. Supplying means of miscarriage - Every one is liable to imprisonment for a term not exceeding 2 years who unlawfully supplies or procures any poison or any drug or other noxious thing, or any instrument or thing whatsoever, knowing that it is intended to be unlawfully used with intent to procure the miscarriage of any woman or girl.
Cf. 1915, No. 40, s. 204
169. Bigamy - (1) Every one who commits bigamy is liable to imprisonment for a tern not exceeding 5 years.
(2) Bigamy is-
(a) The act of a person who being married goes through a valid form of marriage with any other person; or
(b) The act of a person who goes through a valid form of marriage with any person whom he or she knows to be married.
(3) The fact that the parties would, if unmarried, have been incompetent to contract marriage is not a defence upon a prosecution for bigamy.
(4) Every form marriage shall for the purposes of this section be deemed valid, notwithstanding any act or default of the person charged with bigamy, if it is otherwise a valid form.
Cf. 1915, No. 40, s. 205
170. Buggery - (1) Every one is liable to imprisonment for 10 years who commits buggery either with a human being or with any other living creature.
(2) This offence is complete upon penetration.
Cf. 1915, No. 40, s. 206
171. Attempted buggery and indecent assaults on males - (1) Every one is liable to imprisonment for 5 years who-
(a) Attempts to commit buggery; or
(b) Assaults any person with intent to commit buggery; or
(c) Being a male, indecently assaults any other male person.
(2) It is no defence to a charge of indecent assault on a male person of any age that he consented to the act of indecency.
Cf. 1915, No. 40, s. 207
172. Incest - Incest means sexual intercourse between-
(a) Parent and child; or
(b) Brother and sister, whether of the whole blood or of the half blood, and whether the relationship is traced through lawful wedlock or not; or
(c) Grandparent and grandchild, whether the relationship is traced through lawful wedlock or not,
where the person charged knows of the relationship between the parties.
(2) Every one of or over the age of 15 years who commits incest is liable to imprisonment for a term not exceeding 7 years.
Cf. 1915, No. 40, s. 208; 1963, No. 132, s. 4
173. Indecent acts - (1) Every one is liable to imprisonment for a term not exceeding 6 months who wilfully does any indecent act in any public place or within the view of any person being in any public place.
(2) It is a defence to a charge under subsection (1) of this section if the person charged proves that he had reasonable grounds for believing that he would not be observed.
(3) Every one is liable to imprisonment for a term not exceeding 6 months who with intent to insult or offend any person does any indecent act in any place.
Cf. 1915, No. 40, s. 209
174. Indecent documents - Every one is liable to imprisonment for a term not exceeding 6 months who, knowingly and without lawful justification or excuse,-
(a) Sells, exposes for sale, or otherwise distributes to the public any obscene or indecent book, picture, photograph, document, film, video-tape or other object tending to corrupt morals; or
(b) Publicly exhibits any obscene or indecent show tending to corrupt morals. [Amended 5/91/1984]
Cf. 1915, No. 40, s. 210
175. Brothels - (1) Every one who keeps a brothel is liable to imprisonment for a term not exceeding 6 months.
(2) A brothel is a house, room, or place of any kind whatever kept or used for purposes of prostitution.
(3) Any one who acts as a person having the management, care, or control of a brothel shall be deemed to be a keeper thereof, whether he is in fact a keeper thereof or not.
(4) The owner or occupier of any house, room, or place who knowingly to be used as a brothel shall be deemed to be a keeper thereof, whether he is in fact a keeper thereof or not.
Cf. 1915, No. 40, s. 211
176. Gaming houses - (1) Every one who keeps a gaming house is liable to imprisonment for a term not exceeding 6 months.
(2) A, gaming house is a house, room, or, place of any kind whatever kept or used as a place of resort for gambling.
(3) "Gambling" means playing for money or other valuable thing at any game of chance, or playing for excessive stakes or otherwise to the injury of public morals at any game of mixed chance and skill; and includes any form of unlawful gaming.
(4) Any one who acts as a person having the management, care, or control of a gaming house shall be deemed to be a keeper thereof, whether he is in fact a keeper thereof or not.
(5) The owner or occupier of any house, room, or place who knowingly permits it to be used as a gaming house shall be deemed to be a keeper thereof, whether he is in fact a keeper thereof or not.
Cf. 1915, No. 40, s. 212
176A. Powers of Cabinet to permit certain gambling activities - Notwithstanding section 176 of the principal Act, Cabinet may by order permit certain gambling activities to be carried out in Niue, within certain guidelines as Cabinet may make in such Order.
[Added 2/134/1989]
177. Riot - (1) Every one who takes part in a riot is liable to imprisonment for a term not exceeding 2 years.
(2) A riot is an assembly of 3 or more persons who, with intent to carry out any common purpose, disturb the peace tumultuously.
Cf. 1915, No. 40, S. 215
178. Forcible entry - Every one is liable to imprisonment for a term not exceeding 6 months who, by force or threats of force, enters on land then in the actual and peaceable possession of another for the purpose of taking posses ion thereof, whether he who so enters is entitled to the possession thereof or not.
Cf. 1915, No. 40, s. 216
179. Affrays - (1) Every one who, without lawful justification or excuse, takes part in an affray is liable to imprisonment for a term not exceeding one year.
(2) An affray is the act of fighting in a public highway or in any other public place.
180. Official corruption - Every one commits the offence of official corruption and is liable to imprisonment for a term not exceeding 5 years who-
(a) Being the holder of any office, whether judicial or otherwise, in the service of Her Majesty, corruptly accepts or obtains, or agrees to accept or attempts to obtain, for himself or any other person any bribe-that is to say, any money or valuable consideration whatever on account of anything done or omitted or to be afterwards done or omitted by him in his official capacity; or
(b) Corruptly gives or offers to any person holding any office or to any other person any such bribe as aforesaid m account of any such act or omission;
Cf. 1915, No. 40, s. 218
(c) Whether within Niue or elsewhere, corruptly uses any information acquired by him it his official capacity, to obtain directly or indirectly, an advantage or a pecuniary gain for himself or any other person.
[Amended 4/91/1984]
181. Perjury - (1) Perjury is an assertion as to a matter of fact, opinion, belief, or knowledge made by a witness in a judicial proceeding as part of his evidence upon oath or affirmation, whether his evidence is given in open Court or by affidavit or otherwise, that assertion being known to the witness to be false.
(2) Every proceeding is judicial within the meaning of this section which is held before any Court, or before any judicial officer or other person having power to take evidence m oath or affirmation.
(3) Every one is liable to imprisonment for a term not exceeding 5 years who commits perjury.
Cf. 1915, No. 40, s. 219
182. Fabricating evidence - Every one is liable to imprisonment for a term not exceeding 3 years who, with intent to mislead any Court of justice or any judicial officer in the exercise of his functions as such, fabricates evidence by any means other than perjury
Cf. 1915, No. 40, s. 220
183. Conspiracy to pervert justice - Every one is liable to imprisonment for a term not exceeding 3 years who conspires or attempts to obstruct, prevent, pervert, or defeat the course of justice in any cause or matter, civil or criminal.
Cf. 1915, No. 40, s. 221
184. Breaking prison - Every one is liable to imprisonment for a term not exceeding 5 years who by force breaks any prison with intent to set at liberty himself or any other person confined therein.
Cf. 1915, No. 40, s. 222 See s. 135(2)(e) of this Act.
185. Escape - Every one is liable to imprisonment for a term, not exceeding 2 years who, being in lawful custody, whether in a prison or elsewhere, escapes therefrom
Cf. 1915, No. 40, s. 223
See s. 135(2)(e) of this Act.
186. Rescue - Every one is liable to imprisonment for a term not exceeding 2 years who rescues any person from lawful custody, whether in a prison or elsewhere, or who assists any person to escape from such custody.
Cf. 1915, No. 40, s. 224
See s. 135(2)(e) of this Act.
187. Criminal libel or slander - (1) A criminal libel is matter published, without lawful justification or excuse, either designed to insult any person or likely to injure his reputation him to, hatred, contempt, or ridicule or likely to injure in his profession, office, business, trade, or occupation, whether such matter is expressed by words, or printed, or legibly marked on any substance, or by any object signifying such matter otherwise than by words, and whether expressed directly or by insinuation or irony.
(2) Publishing a criminal libel is-
(a) Exhibiting it in public; or
(b) Causing it to be read or seen, or showing or delivering it, or causing it to be shown or, delivered, with a view to its being read or seen, by any person other than the person defamed.
(3) Every one is guilty of criminal slander who, without lawful justification or excuse, uses any words that are likely to injure the reputation of any other person by exposing him to hatred, contempt, or ridicule, or likely to injure him in his profession, office, business, trade, or occupation, if the words are-
(a) Spoken, or reproduced from a recording, within the hearing of more than 12 persons at a meeting to which the public are invited or have access, or within the hearing of more than 12 persons in any place to which the public have or are permitted to have access; or
(b) Broadcast by means of radio.
(4) Every one who publishes a criminal libel or is guilty of criminal slander is liable to imprisonment for a term not exceeding 6 months.
(5) In a prosecution under this section the burden of proof shall be determined by the same rules as in an action for damages for defamation.
(6) In a prosecution under this section it shall be no defence that the libel or slander is true unless the publication thereof was for the public benefit.
Cf. 1915, No. 40, s. 225
188. Definition of theft - (1) Theft or stealing is the act of fraudulently or dishonestly taking, or converting to the use of any person, or misappropriating or disposing of, or dealing in any other manner with, anything capable of being stolen, with intent to defraud or injure any person having any property or interest in that thing.
(2) Every animate or inanimate thing whatever which is the property of any person, and is movable, is capable of being stolen.
(3) Every thing whatever which is the property of any person and is capable of being made movable is capable of being stolen as soon as it becomes movable, although it is made movable in order to steal it.
Cf. 1915, No. 40, s. 227
189. Ineffectual defences to charge of theft - Without in any way limiting the generality of the foregoing definition of theft, a person shall be deemed guilty of theft notwithstanding the fact-
(a) That at the time of the theft he was in lawful possession of the property stolen; or
(b) That he had himself a lawful interest in the property stolen whether as a partner, co-owner, bailee, bailor, mortgagee, mortgagor, or otherwise howsoever; or
(c) That he was a trustee of the property stolen; or
(d) That the property stolen was vested in him as an executor or administrator.
Cf. 1915. No. 40, s. 228
190. Extended definition of theft - Without in any way limiting the generality of the foregoing definition of theft, every person shall be deemed guilty of theft who holds, receives, or obtain any money, valuable security, or other thing whatsoever capable of being stolen, subject to any obligation (whether arising from an express or implied trust, or from an express or implied contract, or from any other source whatsoever) to deal with the money, valuable security, or thing in any manner, and who fraudulently or dishonestly deals with it in any other manner or fails to deal with it in accordance with that obligation.
Cf. 1915, No. 40, s. 229
191. Obtaining money or goods by false pretences to be deemed theft - Every one who by means of any fraud or false pretence dishonestly obtains for himself or for any other person (whether directly or through the medium of any contract procured by the fraud or false pretence) anything capable of being stolen is guilty of stealing the thing so obtained, and shall be liable accordingly.
Cf. 1915, No. 40, s. 230
192. Punishment of theft - (1) Every one who commits theft is liable-
(a) To imprisonment for a term not exceeding 3 months if the value of the property stolen does not exceed [$4];
(b) To imprisonment for a term not exceeding one year if the value of the property stolen exceeds [$4] but does not exceed [$100];
(c) To imprisonment for a term not exceeding 5 years if the value of the property stolen exceeds [$100].
(2) In computing for the purposes of this section the value of the property stolen, where several thefts are charged in the same information against the same person, the aggregate value of all such property shall be computed, and the sentence shall be determined accordingly, and cumulative sentences in respect of the several thefts so charged shall not be imposed.
(3) For the purposes of this section a valuable security shall be deemed to be of the same value as the property to which it relates.
Cf. 1915, No. 40, s. 226(1)-(3)
193. Stealing documents - (1) Every one who destroys, cancels, conceals, or obliterates in whole or in part any document for any fraudulent or dishonest purpose is guilty of having stolen that document, and is liable to imprisonment for a term not exceeding 3 years.
(2) Every one who in this or any other manner steals a testamentary instrument is liable to imprisonment for a term not exceeding 10 years.
194. Receiving stolen goods - Every one who receives any stolen property knowing it to have been stolen is guilty of having stolen the property; and is liable accordingly.
195. Robbery - (1) Robbery is theft accompanied by violence or threats of violence to any person or property, used to extort the property stolen or to prevent or overcome resistance to its being stolen.
(2) Every one who commits robbery is liable to imprisonment for a term not exceeding 10 years.
(3) Every one who assaults any person with intent to rob him is liable to imprisonment for a term not exceeding 5 years.
Cf. 1915, No. 40, s. 233
See s. 135(2)(f) of this Act
196. Conversion or attempted conversion of motorcars, etc. - (1) Every one is liable to imprisonment for a term not exceeding 5 years who, unlawfully and without colour of right, but not so as to be guilty of theft, takes or converts to his use or to the use of any other person any of the following things, namely:
(a) Any motorcar, or any vehicle of any description;
(b) Any ship;
(c) Any aircraft;
(d) Any part of any motorcar, vehicle, ship, or aircraft;
(e) Any horse, mare, or gelding.
(2) Every one is liable to imprisonment for a term not exceeding one year who-
(a) Has in his possession by night any instrument, being an instrument capable of being used for taking or converting any of the things mentioned in paragraphs (a) to (d) of subsection (1) of this section, in circumstances that, prima facie, show an intention to use it for the taking or converting of any such thing as aforesaid;
(b) Has in his possession by day any such instrument as aforesaid with intent to take or convert any such thing as aforesaid.
(3) It is a defence to a charge under paragraph (a) of subsection (2) of this section if the person charged proves that he had lawful excuse for having the instrument in his possession.
197. Breach of trust - (1) Every trustee who with intent to defraud, and in violation of his trust, converts anything of which he is a trustee to any use not authorised by the trust is guilty of criminal breach of trust, and is liable to imprisonment for a term not exceeding 5 years.
(2) For the purposes of this section an executor or administrator shall be deemed to be a trustee of the property subject to his administration.
(3) Nothing in this section shall be so construed as in any manner to limit the foregoing definition of the offence of theft, and if any act of a trustee is both theft and a criminal breach of trust he may be convicted of either of those offences.
Cf. 1915, No. 40, s. 234
198. Menaces - Every one is liable to imprisonment for a term not exceeding 2 years who with menaces demands from any person, either for himself or for any other person, anything capable of being stolen, with intent to steal it.
199. Witchcraft - Every one is liable to imprisonment for a term not exceeding 6 months who pretends to exercise or use any kind of witchcraft, sorcery, enchantment, or conjuration, or undertakes to tell fortunes.
Cf. 1915, No. 40, s. 236
200. Obtaining credit by fraud - Even one is liable to imprisonment for a term not exceeding 6 months who in any debt or liability obtains credit by means of any fraud.
Cf. 1915, No. 40, s. 237
201. Accusation of criminal offences - Every one is liable to imprisonment for a term not exceeding 5 years who,-
(a) With intent to extort or gain anything from any person, accuses or threatens to accuse either that person or any other person of any criminal offence, whether the person accused or threatened with accusation is guilty of that offence or not; or
(b) With such intent as aforesaid, threatens that any person shall be so accused by any person; or
(c) Causes any person to receive a document containing any such accusation or threat, knowing the contents thereof.
Cf. 1915, No. 40, s. 238
202. Conspiracy to defraud - Every one is liable to imprisonment for a term not exceeding 3 years who conspires with any other person by deceit or falsehood or other fraudulent means to defraud the public or any person ascertained or unascertained.
Cf. 1915, No. 40, s. 239
203. Obtaining execution of valuable securities by fraud - Every one is liable to imprisonment for a term not exceeding 3 years who by any false pretence causes or induces any person to execute, make, accept, endorse, or destroy the whole or any part of any valuable security.
Cf. 1915, No. 40, s. 240
204. Burglary - (1) Every one is guilty of burglary and is liable to imprisonment for a term not exceeding 5 years who by day or night-
(a) Breaks and enters any building or ship with intent to commit a crime therein; or
(b) Breaks out of any building or ship either after committing a crime therein or after having entered with intent to commit a crime therein.
(2) For the purposes of this section-
"To break", in relation to any building or ship, means to break any part, internal or external, of the building or ship, or to open by any means whatsoever any door, window, or other thing intended to cover openings to the building or ship or to give passage from one part of it to another;
"Building" means any building, erection, or structure of any description, whether permanent or temporary; and includes a tent or a caravan; and also includes any enclosed yard or any closed cave or tunnel.
205. Unlawful entry of dwellinghouse, etc. - (1) Every one is liable to imprisonment for a term not exceeding 5 years who unlawfully enters or is in any dwellinghouse by night with intent to commit a criminal offence therein, or who is found by night in any dwellinghouse without lawful justification for his presence there.
(2) Every one is liable to for a term not exceeding 3 months or to a fine not exceeding [$20] who without lawful excuse (the proof of which excuse shall be on him), but in circumstances that do not disclose the commission of or an intention to commit any other offence is found at any time in any dwellinghouse, or in any enclosed yard, garden, or area or in or on board any vessel of any kind or any aircraft.
(3) For the purpose of this section-
"Dwellinghouse" means-
(a) Any building, hut, tent, caravan, or other structure or erection, whether permanent or temporary, which is used or intended to be used in whole or in part for human habitation or occupation; or
(b) Any building, public or private, which is used or intended to be used in whole or in part for the purpose of education or the reception or lodging of any person for medical treatment or recuperation or entertainment or any other purpose;
"Night" means the time commencing on the expiration of the first half hour after sunset and concluding at the beginning of the last hour before sunrise.
Cf. 1915, No. 40, s. 241A; 1957, No. 103, s. 90(1)
[205A. Unlawfully entering premises for a criminal purpose - Every one is liable to imprisonment for a term not exceeding 4 years who unlawfully enters or is in any building, ship, or aircraft with intent to commit therein any criminal offence mentioned in this Part of this Act.]
This section was inserted by s. 22 of the Niue Amendment Act 1971.
206. Threats to kill or do bodily harm - Every one is liable to imprisonment for a tern not exceeding 5 years who sends or causes to be received, knowing the contents thereof, any letter or writing containing threats to kill or do bodily harm to any person, or who orally makes a threat to kill or do bodily harm to any person.
Cf. 1915, No. 40, s. 241B; 1948, No. 25, s. 2
207. Forgery - (1) Forgery is the making of a false document with intent to defraud or deceive any person, whether ascertained or unascertained.
(2) Every one who commits forgery is liable to imprisonment for a term not exceeding 5 years.
(3) In this section the term "false document" means a document-
(a) Of which the whole or any material part purports to be made by any Person who did not make it or authorise its making; or
(b) Of which the whole or any material part purports to be made on behalf of any person who did not
authorise its making; or
(c) In which, though it purports to be made by the person who did in fact make it or authorise its making, or purports to be made on behalf of the person who did in fact authorise its making, the time or place of its making, where either is material, or any number or distinguishing mark identifying the document, where either is material, is falsely stated; or
(d) Of which the whole or some material part purports to be made by a fictitious or deceased person or purports to be made on behalf of any such person; or
(e) Which is made in the name of an existing person either by him or by his authority, with the intention that it should pass as being made by some person, real or fictitious, other than the person who makes or authorises it.
(4) For the purposes of this section, the expression "making a false document" includes making any material alteration in a genuine document, whether by addition, insertion, obliteration, erasure, removal, or otherwise.
(5) Forgery is complete as soon as the document is made with such knowledge and intent as aforesaid, although the offender may not have intended that any particular person should use or act upon it as genuine, or should be induced by the belief that it is genuine to do or refrain from doing anything.
(6) Forgery is complete although the false document may be incomplete, or may not purport to be such a document as would be valid in law, if it be so made and is such as to indicate that it was intended to be acted on as genuine.
Cf. 1915, No. 40, s. 242
208. Extended definition of forgery - Every one who procures the execution of any document by any person by falsely pretending that its contents are different from what they really are is guilty of forging that document, and is liable accordingly.
Cf. 1915, No. 40, s. 243
209. Making counterfeit coin - Every one is liable to imprisonment for a term not exceeding 7 years who makes or begins to make counterfeit coin of New Zealand or of any other country, or who has in his possession any dies or other instruments or materials intended to be used in the making of such counterfeit coin.
Cf. 1915, No. 40, s. 244
210. Lightening coin - Every one is liable to imprisonment for a term not exceeding 2 years who diminishes or lightens any coin, whether of New Zealand or of any other country, with intent that when so dealt with it shall pass as current coin either in Niue or New Zealand or elsewhere.
Cf. 1915, No. 40, s. 245
211. Uttering counterfeit coin - Every one who fraudulently utters any counterfeit coin is liable to imprisonment for a term not exceeding 6 months
Cf. 1915, No. 40, s. 246
212. Arson - (1) Arson is the offence of wilfully, and without lawful justification and without bone file claim of right, setting fire to any building ship, crop, chattel, or other thing whatsoever, whether attached to the soil or not.
(2) Where the act, done results in the destruction of or any damage to anything in which the, person accused has an interest, whether total or partial, the existence of that interest shall not prevent his act being an offence if it is done with intent to defraud or to cause loss to any other person. For the purposes of this subsection, where any property is subject to any mortgage or charge, each of the parties to the mortgage or charge shall be deemed to have a partial interest in that property.
(3) Every one who commits the offence of arson is liable to imprisonment for a term not exceeding 5 years.
Cf. 1915, No. 40, s. 247
See s. 135(2)(h) of this Act
213. Wilful mischief to property - (1) Every one is guilty of an offence who wilfully and without lawful justification and without bona fide claim of right destroys or damages any property, whether movable or immovable.
(2) Where the act done results in the destruction of or any damage to anything in which the person accused has an interest, whether total or partial, the existence of that interest shall not prevent his act being an offence if it is done with intent to defraud or to cause loss to any other person. For the purposes of this subsection, where any property is subject to any mortgage or charge, each of the parties to the mortgage or charge shall be deemed to have a partial interest in that property.
(3) Every person who commits an offence against this section is liable to imprisonment for a term not exceeding 3 years if
the damage done or intended to be done by him amounts to [$20] or more, and to imprisonment for a term not exceeding 6 months in any other case.
Cf. 1915, No. 40, s. 248
214. Provoking breach of the peace - Every one is liable to a fine not exceeding [$101 who uses any threatening, abusive, or insulting words or behaviour in any public place with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned.
Cf. 1915, No. 40, s. 249
As to arrest without warrant under this section. see s. 250(2)(d) of this Act.
215. Profane, indecent, or obscene language - Every one is liable to imprisonment for a term not exceeding 3 months or to a fine not exceeding [$40] who uses any profane, indecent, or obscene language in any public place or within the hearing of any person in a public place.
Cf. 1921, No. 14, s. 6
216. Disorderly conduct in public places - Every one is liable to a fine not exceeding [$10] who is guilty of any disorderly conduct in any public place to the annoyance of persons there present.
Cf. 1915, No. 40, s. 250
As to arrest without warrant under this section 250 (2)(d) of this Act
217. Obstructing public place - Every one is liable to a fine not exceeding [$10] who without lawful justification obstructs any public place, or creates any source of danger therein, or otherwise commits any public nuisance therein.
Cf. 1915, No. 40, s. 253
218. Drunkenness - Every one is liable to imprisonment for a term not exceeding one month or to a fine not exceeding [$20] who is found drunk in any public place.
Cf. 1915, No. 40, s. 254
219. Animal trespass - Every one is liable to a fine not exceeding [$10] who permits any horse, sheep, pig, goat, or cattle to wander or be at large in any public place or to trespass upon any land.
Cf. 1915, No. 40, s. 252
220. Prostitution - Any prostitute is liable to imprisonment for a term not exceeding one month or to a fine not exceeding [$10] who loiters and importunes any person in any public place for the purpose of prostitution.
Cf. 1915, No. 40, s. 255
221. Laying poison - Every one is liable to a fine not exceeding [$10] who without lawful justification places any poison in any place so as to be a source of danger to human beings or to animals.
Cf. 1915, No. 40, s. 256
222. Polluting water - Every one is liable to imprisonment for a term not exceeding 6 months or to a fine not exceeding [$100] who throws any offensive matter into or otherwise pollutes any watercourse, well, cistern, or other place from which the supply of water for the use of the inhabitants is obtained.
Cf. 1915, No. 40, s. 257
223. Sale of unwholesome provisions - Every one is liable to imprisonment for a term not exceeding one month or to a fine not exceeding [$40] who sells, or exposes for sale, or has in his possession with intent to sell, any food or drink which he knows, or might by the exercise of reasonable care have known, to be unwholesome.
Cf. 1915, No. 40, s. 258
224. Insanitary premises - Every one is liable to a fine not exceeding [$20] who permits any premises in his occupation or belonging to him to be in an insanitary or offensive condition to the danger or annoyance of the public or of his neighbours.
Cf. 1915, No. 40, s. 259
225. Wilful trespass - Every one is liable to a fine not exceeding [$10] who wilfully trespasses on land in the occupation of any other person.
226. Cruelty to animals - Every one is liable to imprisonment for a term not exceeding one month or to a fine not exceeding [$20] who cruelly beats overdrives, overloads, abuses, tortures, or otherwise ill treats any animal or who, being the owner or having the charge of any animal, omits to supply it. with proper and sufficient food, water, or shelter.
(2) In this section the term "animal" means any beast or bird of any species whatever.
227. Falsely trading as an incorporated company - (1) Every one is liable to a fine not exceeding [$200] who uses in connection with his trade or business any name, sign, device, or other representation indicating or calculated to lead other persons to believe contrary to the fact that the trade or business is that of an incorporated company.
(2) In any prosecution for an offence against this section the burden of proving that the incorporated company exists and that the trade or business so carried m is the trade or business of that company shall be upon the accused.
Cf. 1915, No. 40, s. 262
228. Conspiracy - Every one who conspires with any other person to commit any offence punishable by imprisonment is liable to imprisonment for a term not exceeding half the longest term to which a person committing the said offence may be sentenced.
Wrongful communication, retention or copying of official information
228A Every one is liable to imprisonment for a term not exceeding 3 years who -
(a) Knowingly or recklessly, and with knowledge that he is acting without proper authority, communicates any official information to any other person, or uses directly or indirectly any official information for any purpose whatsoever where such disclosure or use is contrary to the interests of Niue;
(b) Knowingly or recklessly, and with knowledge that he is acting without proper authority, retains or copies official Information, or permits any other person to retain or copy such official information;
(c) Knowingly fails to comply with any directions issued by a lawful authority for the return of any official information, including copies thereof, which is in his possession or under his control.
(2) In this section the term "official information" means any information held by -
(i) A Department or agency of government;
(ii) Minister of the Crown in his official capacity; or
(iii). An officer or employee of any department or agency of government in his capacity as such an of officer or employee or in his capacity as a statutory officer; or
(iv) An independent contractor engaged by any department or Minister of the Crown or agency of government in his capacity as such contractor;
(v) Any committee or advisory body established for the purpose of assisting or advising or performing functions connected with any department or Minister of the Crown or agency of government.
[Added 3/97/1984]
Attempts
229. Attempts to commit offences - (1) Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
(2) The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
(3) An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.
(4) Everyone who attempts to commit an offence in respect of which no punishment is expressly prescribed by this or any other Act [of the New Zealand Parliament that extends to Niue], or by any [Act of the Niue Assembly], regulation, bylaw, or other enactment is liable to not more than half the maximum punishment to which he would be liable if he had committed that offence.
Cf. 1915, No. 40, s. 264; 1963, No. 132, s. 6(1)
In subs. (4) the words in the first act of square brackets were inserted by s. 2(1) of the Niue Amendment Act 1974, and the reference to any Act of the Niue Assembly was substituted for a reference to any Ordinance by s 2(2)(e) of that Act.
230. Attempt proved when offence is charged - Where the commission of the offence charged is not proved, but the evidence establishes an attempt to commit the offence, the accused may be convicted of the attempt.
Cf. 1915, No. 40, s. 264A; 1963, No. 132, s. 6(1)
231. Offence proved when attempt is charged - (1) Where an attempt to commit an offence is charged, but the evidence establishes the commission of the full offence, the accused may be convicted of the attempt.
(2) After a conviction for that attempt, the accused shall not be liable to be tried again for the offence which he was charged with attempting to commit.
Cf. 1915, No. 40, s. 264B; 1963, No. 132, s. 6(1)
Parties to Offences
232. Inciting - (1) Every person who incites any person, whether ascertained or unascertained, to commit any offence punishable by imprisonment shall be liable to imprisonment for a term not exceeding half the longest term to which a person committing the said offence may be sentenced or, where that offence is punishable by imprisonment for life, to imprisonment for a term not exceeding 14 years.
(2) If the offence to which any person is so incited is actually committed by him, the person so inciting him shall be liable, on a charge of inciting, to the same punishment as if he had himself committed the offence, or he may be charged and convicted as a party to the offence so procured by him.
Cf. 1915, No. 40, s. 265
233. Parties to offences - Every one is a party to and guilty of an offence who-
(a) Actually commits the offence; or
(b) Does or omits any act for the purpose of aiding any person to commit the offence; or
(c) Abets any person in the commission of the offence; or
(d) Counsels or procures any person to commit the offence.
Cf. 1915, No. 40, s. 266
234. Common criminal purpose - If several persons form a common intention to prosecute any unlawful purpose and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of that common purpose, the commission of which offence was known to be a probable consequence of the prosecution of that common purpose.
Cf. 1915, No. 40, s. 267
235. Counselling or procuring - (1) Every one who counsels or procures another to be a party to an offence of which that other is afterwards guilty is a party to that offence, although it may be committed in a way different from that which was counselled.
(2) Every one who counsels or procures another to be a party to an offence is a party to every offence which that other commits in consequence of that counselling or procuring, and which the person counselling or procuring knew to be likely to be committed in consequence of the counselling or procuring.
236. Accessory after the fact - (1) An accessory after the fact to an offence is one who, knowing any person to have been a party to the offence, receives, comforts, or assists that person or tampers with or actively suppresses any evidence against him, in order to enable him to escape after arrest or to avoid arrest or conviction.
(2) No married person whose spouse has been a party to an offence shall become an accessory after the fact to that offence by doing any act to which this section applies in order to enable the spouse, or the spouse and any other person who has been a party to the offence, to escape after arrest or to avoid arrest or conviction.
Cf. 1915, No. 40, s. 268A; 1962, No. 40, s. 6
237. Punishment of accessories - Every one who is accessory after the fact to any offence punishable by imprisonment, being an offence in respect of which no express provision is made by this Act or by some other enactment for the punishment of an accessory after the fact, is liable to imprisonment for a term not exceeding 7 years if the punishment for that offence is imprisonment for life, and not exceeding 5 years if that punishment is imprisonment for 10 or more years; and in any other case is liable to not more than half the punishment to which he would have been liable if he had committed the offence.
Cf. 1915, No. 40, s. 268B; 1962, No. 40, s. 6
[Infancy
[237A. Children under 10- (1) No person shall be convicted of an offence by reason of any act done or omitted by him when under the age of 10 years.
(2) The fact that by virtue of this section any person has not been or is not liable to be convicted of an offence shall not affect the question whether any other person who is alleged to be a party to that offence is guilty of that offence.
[237B. Children between 10 and 14 - (1) No person shall be convicted of an offence by reason of any act done or omitted by him when of the age of 10 but under the age of 14 years, unless he knew either that the act or omission was wrong or that it was contrary to law.
(2) The fact that by virtue of this section any person has not been or is not liable to be convicted of an offence shall not affect the question whether any other person who is alleged to be a party to that offence is guilty of that offence.]
Ss. 237A and 237B were inserted by s. 7 of the Niue Amendment Act 1970.
Defences
238. Common law defences - All rules and principles of the common law which render any circumstance a justification or excuse for any act or omission, or a defence to any charge, shall remain in force with respect to all offences constituted by this or any other enactment, except so far as inconsistent with this or any other enactment.
Cf. 1915, No. 40, s. 269
239. Common law offences - No person shall be proceeded against for any criminal offence at common law.
Cf. 1915 No. 40, s.270
Sentences
240. Power to fine instead of or in addition to imprisonment - Except where otherwise expressly provided, everyone liable to imprisonment for any term for an offence may be sentenced to pay a fine not exceeding [$200] in addition to or instead of imprisonment.
Cf. 1915, No. 40, s. 272
241. Enforcement of fines - (1) Every fine imposed upon any person by the High Court shall constitute a judgment debt due by that person to the Crown, and payment thereof shall be enforceable and recoverable accordingly by writ of sale or any other civil process of execution in the same manner in all respects as if the debt had been recovered in civil proceedings at the suit of the Crown.
(2) Any person upon whom any such fine has been imposed may, by warrant under the seal of the High Court, be committed to prison by a Judge of that Court for a period not exceeding 6 months, but shall be entitled to be discharged from imprisonment on payment of the fine.
(3) When any person has been so committed to prison, no proceedings or further proceedings shall thereafter be taken for the enforcement of the fine by way of civil process under this section.
Cf. 1915, No. 40, s. 273
242. Imprisonment in Niue - Save so far as herein otherwise provided, every sentence of imprisonment shall be carried into effect in some prison in Niue and subject to the provisions of any [Act of the Niue Assembly].
Cf. 1915, No. 40, s. 274; 1963, No. 132, s. 7
The reference to any Act of the Niue Assembly was substituted for a reference to any Ordinance by s. 2 (2) (e) of the Niue Amendment Act 1974.
In its application to Tokelau, this section was modified by substituting the word "enactment" for the words "Act of the Niue Assembly" by regulation 2(2)(b) of the Tokelau Crimes Regulations 1975 (S.R. 1975/279).
243. Transfer of convicted persons to New Zealand - (1) Every person sentenced to imprisonment, or committed to prison, for 6 months or more [including an offender who has been recalled under section 244A of this Act] may, by warrant [of the Cabinet] and the Seal of Niue, be transferred to some prison in New Zealand named or described in the warrant.
(2) On the issue of any such warrant, the person named therein shall thereupon be taken in custody from Niue to New Zealand, and there forthwith delivered to the Superintendent of the prison named or described in the warrant.
(3) The warrant shall be delivered to the said Superintendent together with a certificate under the hand of a judge of the High Court and the seal of that Court setting forth the fact of the conviction or commitment of the person named in the warrant, the offence of which he was convicted or the reason of the commitment, and the term for which he has been so sentenced or committed.
(4) Where any person brought to New Zealand under the provisions of this section is imprisoned in New Zealand under any of the foregoing provisions of this section,-
(a) The period during which he has been in custody since the sentence was imposed in Niue until his delivery to the Superintendent in New Zealand shall for all purposes be computed as part of the term of his imprisonment:
(b) Subject to the provisions of section 244 of this Act, he shall, be imprisoned in New Zealand in the same manner in all respects and shall be subject in all respects, to the same laws, as far as applicable, as if he had been sentenced by the Supreme Court of New Zealand to imprisonment for the like offence, or committed to prison by that Court on the like grounds.
Cf. 1915, No. 40, s. 275; 1962, No. 40, s. 7(2); 1964, No. 70, s. 57(1); 1965, No. 1, s. 3(3)
In subs. (1) the words in the first set of square brackets were inserted by s. 3(2) of the Niue Amendment Act 1968, and the words "of the Cabinet" were substituted for the words "under the hand of the Resident Commissioner" by s. 2(1) of the Niue Amendment Act 1974.
In its application to Tokelau, subs. (1) was modified by substituting the words "under the hand of the Administrator of Tokelau" for the words "of the Cabinet and the Seal of Niue" by regulation 2(2)(b) of the Tokelau Crimes Regulations 1975 (S.R. 1975/279).
244. Release of prisoners transferred to New Zealand - (1) Where any person (in this section referred to as the offender) brought to New Zealand under the provisions of section 243 of this Act is imprisoned in New Zealand under the provisions of that section,-
(a) The Minister of Justice, with the concurrence of [the Minister of Foreign Affairs],-
(i) May at any time, by warrant signed by him, grant to the offender, not being an offender serving a sentence of life imprisonment, remission of any part of his sentence, not exceeding one-fourth of the term thereof, on the ground of his good conduct and industry; and
(ii) May, where he considers that the conduct of the offender has been exemplary during his sentence, or that the offender has during his sentence performed some outstanding act of service, grant to the offender, not being an offender serving a sentence of life imprisonment, in addition to any remission which may be granted to him under subparagraph (i) of this paragraph, a special remission of part of his sentence, not exceeding one-twelfth of the term; and may revoke any such remission at any time before the offender is released; and
(iii) May, in the case of any offender who is a Niuean, direct by warrant signed by him that on the release of the offender he be allowed to remain in New Zealand;
(b) Where any offender is granted a remission of any part of his sentence under paragraph (a) of this subsection, then,-
(i) If pursuant to this section he is to be released in New Zealand, the Minister of Justice, with the concurrence of [the Minister of Foreign Affairs], may, by warrant at any time before the offender is released, impose such special condition of probation as he thinks fit in addition to those that apply by virtue of the provision of section 38 of the Criminal Justice Act 1954;*
*Not Niue Law. In New Zealand see now Criminal Justice Act 1985.
(ii) If pursuant to this section he is to be returned to Niue, the Minister of Justice, with the like concurrence, may, by warrant at any time before the offender is released for the purpose of being returned to Niue, direct that, until a date specified in the warrant (being a date not later, than the date of expiry of the term of the original sentence), the offender shall be subject to supervision by a person to be nominated from time to time by the [Premier], and shall comply with the direction of that person with respect to such matters as are specified in the warrant;
(c) The provisions of section 33A of the Criminal Justice Act 1954* (as enacted by section 4 of the Criminal Justice Amendment Act 1961), as far as they are applicable but subject to the provisions of this section, shall apply with respect to the offender as if he had been sentenced to imprisonment by the Supreme Court of New Zealand.
*Not Niue Law. In New Zealand see now Criminal Justice Act 1985.
(2) The Prisons Parole Board, on considering the case of any offender under section 33A of the Criminal Justice Act 1954* (as so enacted), shall have regard, in addition to the matters specified in subsection (6) of that section, to such other matters of any kind whatsoever as it considers relevant in the circumstances of the case, and may, in its discretion, recommend that the offender-
(a) Be returned to Niue and released on his arrival there; or
(b) Be returned in custody to Niue and continue to serve the sentence of imprisonment in some prison in Niue until a date specified by the Board (being, in the case of a prisoner undergoing a sentence of life imprisonment, such date as the Board thinks fit, and, in the case of any other prisoner, a date not later than 3 months after his return to Niue) and be released on the date so specified; or
(c) Be released in New Zealand.
(3) Any recommendation of the Prisons Parole Board under subsection (2) of this section may be subject to such conditions as the Board thinks fit, including, if the Board thinks fit, a condition, in the case of a prisoner to whom paragraph (a) or paragraph (b) of that subsection applies, that, until a date specified by the Board (being, in the case of an offender undergoing a sentence of life imprisonment, such date as the Board thinks fit, and in any other case a date not later than the date of the expiry of the original sentence), he shall be subject to supervision by a person to be nominated from time to time by the [Premier] and shall comply with the directions of that person with respect to such matters as the Board specifies.
(4) The provisions of the Criminal Justice Act 1954* relating to the release of an offender on probation shall not apply with respect
to any offender who is to be returned to Niue pursuant to this section.
*Not Niue Law. In New Zealand see now Criminal Justice Act 1985.
(5) Where pursuant to this section any offender is released in New Zealand, the provisions of sections 35 to 39 of the, Criminal Justice
Act 1954,* as far as they are applicable, shall apply as if he had been so released at or before the expiry of a term of imprisonment
imposed by the Supreme Court of New Zealand.
*Not Niue Law. In New Zealand see now Criminal Justice Act 1985.
(6) Where any offender who pursuant to this section is released in New Zealand desires to return to Niue before the expiration of the term of his probation, the Minister of justice, on the application of the offender and with the concurrence of [the Minister of Foreign Affairs], may cancel the probationary licence as from the date on which the offender leaves New Zealand, and by warrant direct that as from the date of the arrival of the offender in Niue until a date specified in the warrant (being not later than the date on which the term of probation would have expired if the probationary licence had not been cancelled) the offender shall be subject to supervision by a person to be nominated from time to time by the [Premier] and shall comply with the directions of that person with respect to such matters as are specified in the warrant.
(7) Every offender, if he is a Niuean, shall, as soon as he is entitled to be released or as soon thereafter as may be, unless he is to be released in New Zealand under this section, be returned to Niue pursuant to a warrant signed by the Minister of justice, and in the meantime shall be detained in custody in some prison in New Zealand appointed by that warrant.
(8) A recommendation of the Prisons Parole Board under this section may be given effect to pursuant to a warrant signed by the Minister of Justice with the concurrence of [the Minister of Foreign Affairs]
(9) For the purposes of this section, cumulative terms of imprisonment shall be treated as one term.
(10) Where any offender is for the time being subject to supervision in Niue under this section, the term of his sentence shall continue to run while he is subject to supervision as if he were still serving the sentence; and the date of expiry of the sentence shall be determined accordingly.]
Cf. 1915, No. 40, s. 275A; 1962, No. 40, s. 7(1); 1963, No. 132, s. 8(2)(b), (3), (4); 1964, No. 70, s. 57 (1); 1965, No. 1, s. 3(3)
In subss. (1) (a), (1) (b) (i), (6), and (8) the references to the Minister of Foreign Affairs were substituted for references to the Minister of Island Affairs (as substituted by s. 8 (2) of the Maori and Island Affairs Department Act 1968) by s. 2 (4) (a) of the Niue Amendment Act (No. 2) 1974.
In subss. (1)(b)(ii)(3), and (6) the word "Premier" was substituted for the words "Resident Commissioner" by s. 2(1) of the Niue Amendment Act 1974.
Subs. (10) was added by s. 2 of the Niue Amendment Act 1968
*Not Niue law. In New Zealand see now Criminal Justice Act 1985
[244A. Recall of offender subject to supervision - (1) Where any offender undergoing a sentence of imprisonment for life is for the time being subject to supervision in Niue pursuant to section 244 of this Act, [[the Cabinet]] may at any time before the expiration of the period of supervision, by warrant... direct that the offender be recalled.
(2) On the giving of that direction, the supervision shall be deemed to be cancelled, and the offender may be arrested without warrant by any constable, and, subject to section 244 of this Act, shall continue to serve his original sentence.
(3) The powers conferred by subsection (1) of this section may be exercised on such grounds as [[the Cabinet thinks fit]] and whether or not the offender has committed a breach of any condition of his supervision.]
This section was inserted by s. 3 (1) of the Niue Amendment Act 1968.
In subs. (1) the words "the Cabinet" were substituted for the words "the Minister of Justice, on the application of the Resident Commissioner and with the concurrence of the Minister of Island Affairs", and the words" signed by him" were omitted, s. 2(1) of the Niue Amendment Act 1974.
In subs. (3) the words "the Cabinet thinks fit" were substituted for the words "the Minister of Justice and the Minister of Island Affairs think fit" by s. 2(1) of the Niue Amendment Act 1974.
245. Person conditionally released from imprisonment, or portion of whose sentence is conditionally remitted, may be reimprisoned - (1) Any person who is released from imprisonment-
(a) Pursuant to a remission of part of his sentence under paragraph (a) of subsection (1) of section 244 of this Act or to a recommendation of the Prisons Parole Board under paragraph (c) of that subsection subject to any conditions imposed under that section, and is returned to Niue under that section (including a person who returns to Niue pursuant to subsection (6) of that section); or
(b) Pursuant to a remission of part of his sentence under section 286 of this Act subject to any conditions imposed under that section,-
and who commits a breach of any such condition may be arrested by any constable without warrant and brought before a judge of the High Court, and may be sentenced to imprisonment in the case of a person who was undergoing a sentence of life imprisonment, for such period as the Court thinks fit, and in any other case for any period not exceeding the unexpired portion of the term of his original sentence.
(2) For the purposes of this section, cumulative terms of imprisonment shall be treated as one term.
Cf. 1915, No. 40, s. 275B; 1962, No. 40, s. 8
246. Cumulative sentences - (1) When an offender is sentenced for more offences than one at the same time, or if, when sentenced for one offence, he has already been sentenced for any other offence and has not yet completed the sentence so imposed upon him, the Court may direct that the sentences passed on him for his several offences shall take effect one after the other or concurrently.
(2) Save as provided by this section, every sentence of imprisonment shall commence to take effect on the day on which the sentence is pronounced.
Cf. 1915, No. 40, s. 277
PART VI
(As to the application of this section to Tokelau, see the Tokelau Crimes Regulations 1975 S.R. 1975/279).
CRIMINAL PROCEDURE
247. Magistrate - In this Part of this Act the term "Magistrate" means ... any judge of the Land Court or of the Land Appellate Court, the Registrar of the High Court or of the Land Court, the Comptroller of Customs, or any Medical Officer.
248. Jurisdiction of High Court - Except where otherwise expressly provided, all offences against the laws of Niue may be tried in the High Court in accordance with this Part of this Act.
Cf. 1915, No. 40. s. 279
249. Felonies and misdemeanours - There shall be no distinction between felonies and misdemeanours and between offences punishable on indictment and by way of summary conviction; and, so far as may be necessary for the purpose of any rule of the common law or of any enactment in force in Niue, all, such offences shall be deemed to be misdemeanours.
Cf. 1915, No. 40, s. 280
Preliminary Proceedings
[250. Arrest without warrant - (1) No person shall be arrested without warrant except pursuant to this Act or pursuant to some other enactment giving power to arrest without warrant.
(2) Any constable and any person whom he calls to his assistance may, without warrant, arrest and take into custody-
(a) Any person whom he finds disturbing the public peace or whom he has good cause to suspect is committing treason (as defined in section 73 of the Crimes Act 1961) or any office punishable by imprisonment;
(b) Any person whom he has good cause to suspect of having committed a breach of the peace or treason (as so defined) or any offence punishable by imprisonment;
(c) Any person whom he has good cause to suspect to be attempting or about to commit a breach of the peace or treason (as so defined) or any offence punishable by imprisonment;
(d) Any person whom he has good cause to suspect is committing an offence against section 214 or section 216 of this Act.
(3) Any person may, without warrant, arrest and take into custody-
(a) Any person whom, in any public place, he finds disturbing the public peace;
(b) Any person whom he has good cause to suspect to be about to commit, in a public place, a breach of the peace.
(4) The foregoing provisions of this section shall be read subject to the express provisions of any enactment imposing any limitation, restriction, or condition on the exercise of any power to arrest without warrant conferred upon any constable or any other person in respect of any specified offence or any specified class of offences.
(5) Where under any enactment, other than this Act, any officer or other person, not being a constable, has power, without warrant, to arrest any other person, any constable may exercise that power in the same cases and in the same manner as that officer or other person.
(6) Where, any person other than a constable, arrests, without warrant any other person, he shall as soon as reasonably possible thereafter deliver that other person into the custody of a constable.]
This section was substituted for the original s. 250 by s. 23 of the Niue Amendment Act 1971.
As to sub (2) and the release on bail by a constable, see s. 255A(2) of this Act.
251. Arrest on warrant of Magistrate - A Magistrate, on receiving such information on oath as seems sufficient to him, whether made in writing or not, may, if he thinks fit, issue his warrant for the arrest of any person for any offence against the laws of Niue, and thereupon any constable or other person specified in the warrant in that behalf may arrest the accused, who shall be forthwith brought before a judge of the High Court or a Magistrate, there to be dealt with in accordance with the provisions of this Part of this Act.
Cf. 1915, No. 40, s. 282
[251A. Duty of persons arresting - (1) It is the duty of every one arresting any other person to inform the person he is arresting, at the time of the arrest, of the act or omission for which the person is being arrested, unless it is impracticable to do so, or unless the reason for the arrest is obvious in the circumstances. The act or omission need not be stated in technical or precise language, and may be stated in any words reasonably sufficient to give that person notice of the true reason for his arrest.
(2) It is the duty of every one who arrests any other person pursuant to any process or warrant-
(a) If he has the process or warrant in his possession at the time of the arrest, to produce it if required by that person to do so;
(b) If he does not have the process or warrant in his possession at the time of the arrest, to show it to the arrested person as soon as practicable after the arrest, if that person so requires.
(3) Where under any enactment any person other than a constable has, by virtue of his office, a power of arrest without warrant, he shall, whenever he arrests any other person pursuant to that power,-
(a) If he has evidence of his appointment to that office in his possession at the time of the arrest, produce it if required by that person to do so;
(b) If he does not have evidence of his appointment in his possession at the time of the arrest, show it to the arrested person as soon as practicable after the arrest, if that person so requires.
(4) A failure to fulfil any of the duties mentioned in the foregoing provisions of this section shall not of itself deprive the person arresting, or his assistants, of protection from criminal responsibility, but shall be relevant to the inquiry whether the arrest might not have been effected, or the process or warrant executed, by reasonable means in a less violent manner.
(5) Every person who is arrested on a charge of any offence shall be brought before the High Court, as soon as possible, to be dealt with according to law.
(6) Nothing in this section shall limit or affect the express provisions of any enactment whereby,-
(a) The burden of proving the absence of reasonable or probable cause, or the absence of justification, for any arrest is on any person;
(b) Any person having, by virtue of his office, a power of arrest without warrant, is entitled, in any specified circumstances, to exercise that power without the production of evidence of his appointment to that office, or is required in exercising the power, to comply with any specified conditions or restrictions in addition to or instead of producing evidence of his appointment.]
This section was inserted by s. 24 of the Niue Amendment Act 1971.
252. Committal by Magistrate for trial - (1) When any person arrested with or without warrant under the foregoing provisions is brought before a Magistrate, the Magistrate may, after such preliminary inquiry (if any) as he thinks fit, and, after giving the prisoner an opportunity of being heard, by warrant either discharge the prisoner, or commit him to prison to await trial by the High Court for the offence for which he was arrested, or admit him to bail, with or without sureties, conditioned to appear before the High Court in due course for trial for the offence.
(2) No such discharge by a Magistrate shall amount to an acquittal so as to preclude the prosecution and trial of the accused in the High Court for the offence for which he was so arrested.
Cf. 1915, No. 401 s. 283
Trial by the High Court
253. Information - Every prosecution in the High Court for any offence shall be commenced by an information in writing laid by a constable or any other prosecutor before a judge or the Registrar of that Court.
Cf. 1915, No. 40, s. 284; 1921, No. 14, s. 7(1)
In its application to Tokelau this section was modified by adding the words "or the Commissioner for Atafu or for Fakaofo or for Nukunonu" by regulation 2(2)(b) of the Tokelau Crimes Regulations 1975 (S.R. 1975/279).
254. Warrant or summons - On the commencement of any such prosecution, any judge of the High Court may, if he thinks fit, unless the accused is already in custody, at any time and from time to time issue either a warrant for the arrest of the accused or a summons requiring him to appear before the High Court at the time and place specified in the summons, there to answer the charge so made against him in the information and set out in the summons.
Cf. 1915, No. 40, s. 285; 1921, No. 14, s. 7(2)
In its application to Tokelau, this section was modified by inserting after the words "Judge of the High Court", the words "or the Commissioner for Atafu or for Fakaofo or for Nukunonu" by regulation 2(2)(b) of the Tokelau Crimes Regulations 1975 (S.R. 1975/279).
255. Warrant after issue of summons - Any such warrant may be at any time issued by a Judge of the High Court, notwithstanding the fact that a summons has been already issued to the accused as aforesaid.
Cf. 1915, No, 40, s 286
In its application to Tokelau, this section was modified by inserting after the words "High Court" the words "or the Commissioner for Atafu or for Fakaofo or for Nukunonu" by regulation 2(2)(b) of the Tokelau Crimes Regulations 1975 (S.R. 1975/279)
[255A. Arrested person may be released on bail by constable in certain cases - (1) Where, under the provisions of subsection (1) of section 250 of this Act, any person, is arrested without warrant by a constable or some other person on the grounds that the constable or other person suspects on reasonable grounds that the person arrested has committed any one or more of the following offences:
(a) Wilful mischief to property; or
(b) Resisting a constable in the execution of his office; or
(c) Using profane, indecent, or obscene language; or
(d) Indecent behaviour; or
(e) Assault; or
(f) Fighting or drunkenness in a public place; or
(g) Any offence against the provisions of subsection (2) of section 205 of this Act,-
then, notwithstanding the provisions of subsection (2) of section 250 of this Act, on the arrested person being brought before a constable in charge of any police station, the constable in charge of the police station may, in his discretion, release the arrested person on bail, with or without sureties, conditioned for the appearance of the arrested person before the High Court at such place and at such time (being not more than 3 clear days after the date of the arrest of the arrested person) as the constable in charge of the police station specifies.
(2) Should the constable in charge of a police station not release any arrested person on bail in accordance with the provisions of subsection (1) of this section, the provisions of subsection (2) of section 250 of this Act shall apply to that person.
(3) Where any person who has been released on bail in accordance with the provisions of subsection (1) of this section appears before the High Court, then, on his appearance before the High Court, he shall be deemed to be in custody.
(4) Nothing in subsection (1) of this section shall derogate from the provisions of section 257 of this Act.]
This section was inserted by s. 8 of the Niue Amendment Act 1970.
256. Prisoners brought before Judge of High Court before commencement of prosecution - (1) When any person charged with an offence is brought before a judge of the High Court in custody, having been arrested without warrant or on a warrant issued by a Magistrate, the Judge may from time to time, unless a prosecution has been already commenced against the prisoner by information as aforesaid, either discharge the prisoner, or remand him in custody pending the commencement of a prosecution, or release him on bail, with or without sureties, conditioned for his appearance before the High Court at such time and place as the Judge thinks fit.
(2) No discharge under this section shall amount to an acquittal so as to preclude the prosecution or trial of the prisoner for the offence for which he has been so arrested.
In its application to Tokelau, subs. (1) was modified by adding after the words "Judge of the High Court", the words "or the Commissioner for Atafu or for Fakaofo or for Nukunonu", and by inserting after the words "the Judge", wherever they occur, the words "or the Commissioner, as the case may be". See regulation 2(2)(b) of the Tokelau Crimes Regulations 1975 (S.R. 1975/279)
257. Remand - When any prosecution has been commenced in the High Court, the Court may from time to time either remand the accused in custody or admit him to bail, with or without sureties, conditioned to appear before the High Court at any other time or place.
Cf. 1915, No. 40, s. 288
As to release on bail by a constable, see s. 255A(4) of this Act.
257. Trial of accused in his absence - When any person who is prosecuted for an offence punishable by fine only has been duly summoned to appear before the High Court and fails to appear in accordance with the summons, the Court may try and sentence him for that offence in his absence.
Cf. 1915, No. 40, s. 289
Assessors
259. Constitution of Court on criminal trials - Every criminal trial in the High Court shall take place before one Judge of that Court sitting with or without assessors in accordance with the provisions of this Part of this Act.
Cf. 1915, No. 40, s. 290
260. Judge with assessors - On the trial of any person for any offence punishable by imprisonment for more than 5 years, the judge shall sit with assessors.
Cf. 1915, No. 40, s. 291
261. Judge without assessors - On the trial of any person on an information charging him exclusively with an offence or offences punishable only by fine, the Judge shall sit without assessors.
Cf. 1915, No. 40, s. 292
262. Judge with or without assessors as he thinks fit - (1) In all other criminal trials, the Judge shall sit without assessors, unless the Court in its discretion orders otherwise, either on its own motion or on the application ex parte or otherwise of either the prosecutor or the accused.
(2) Repealed 2/9/1975
263. Order appointing assessors - Any such order may be made at any time after the commencement of the prosecution, and whether before or during the trial; but, if made after any evidence has been heard at the trial, all such evidence shall, except so far as repeated before the Judge and assessors, be of no force or effect.
Cf. 1915, No. 40, s. 294
264. Number and qualifications of assessors - (1) The assessors shall in all cases be 6 in number, and shall be such fit and proper persons (whether men or women) as a Judge of the Court think, fit, subject to any rules of Court which may be made in that behalf, to appoint by warrant under his hand and the seal of the Court and the consent of an assessor shall not be requisite for his appointment.
(2) No person shall be appointed as an assessor unless he has first be nominated by the [Cabinet] by warrant published in the Niue Island Gazette as a person qualified for appointment as an assessor under this Act, either generally or in respect of any particular case or class of cases; and the [Cabinet] may accordingly from time to time nominate in this behalf such and so many persons as [the Cabinet thinks] qualified by reason of their character, education, ability, or reputation to hold that office, and may at any time in like manner revoke any such nomination.
Cf. 1915, No. 40, s. 295; 1965, No. 1, s. 3(1)
In subs. (2) the words "Cabinet", wherever it occurs, was substituted for the word "Governor-General", and the words "the Cabinet thinks" were substituted for the words "he thinks" by s. 2(1) of the Niue Amendment Act 1974.
In its application to Tokelau, subs. (2) was modified by substituting the words "under its hand for the words published in the Niue Island Gazette by regulation 2(2)(b) of the Tokelau Crimes Regulations 1975 (S.R. 1975/279).
265. Default of assessors - If any person so appointed as an assessor, and having had reasonable notice of the time and place of the trial, fails without reasonable excuse duly to attend at the trial or at any adjournment thereof, or duly to make oath as such, or duly to act as assessor throughout the trial, he shall be guilty of contempt of the High Court.
Cf. 1915, No. 40, s. 296
266. Remuneration of assessors - Every assessor shall be entitled to receive from [the Niue Government Account] such remuneration or allowances in respect of his services as may be authorised by the judge at the trial in conformity with any rules of Court which may be made in that behalf.
Cf. 1915, No. 40, s. 297; 1957, No. 103, s. 95(1)
The reference to the Niue Government Account was substituted for a reference to the Niue Assembly Account by s. 2(2)(f) of the Niue Amendment Act 1974.
267. Oath of assessors - Before an assessor commences to act as such, he shall in open Court and in the presence of the accused make oath to act well and truly as assessor and to decide in accordance with the evidence and with law.
Cf. 1915, No. 40, s. 298
268. Change of assessors - At any time after the appointment of an assessor and before he has been sworn as aforesaid, a judge of the Court may, either of his own motion or on the application ex parte or otherwise of the prosecutor or the accused, if he is satisfied there is any reasonable and sufficient objection to that assessor, remove him and appoint another assessor in his place.
Cf. 19 15, No. 40, s. 299
269. Discharge of assessors and new trial - (1) If at any time after the commencement of the trial and before judgment the Judge is of opinion that, owing to the misbehaviour of any assessor, or to the death, illness, or absence of any assessor, or to any accident or misadventure, or to any other sufficient cause, a new trial is necessary m the interests of justice, he may discharge the assessors and order, a new trial accordingly.
(2) Every such new trial shall take place before the same or another judge with assessors in the same manner as if no previous trial had taken place.
Cf. 1915, No. 40, s. 300
270. Concurrence of assessors - On a trial with assessors, no person shall be convicted by the judge of any offence, unless the conviction is concurred in by not less than 4 of the assessors.
Cf. 1915, No. 40, s. 301
271. Concurrence of Judge - If the Judge is of opinion that the accused should not be convicted, or if fewer than 4 of the assessors concur in his conviction, the accused shall be acquitted.
Cf. 1915, No. 40, s. 302
272. Sentence - The concurrence of assessors in the sentence to be passed by the Judge shall not be necessary.
Cf. 1915, No. 40, s. 303
273. Concurrence of assessors not necessary except for conviction - The concurrence of the assessors shall not be necessary for any other act of the Court or the judge other than conviction, and in all other respects the jurisdiction of the Court shall be exercised by the judge in the same manner as if he was sitting without assessors.
Cf. 1915, No. 40, s. 304
Miscellaneous Provisions
274. Alternative and cumulative charges - (1) Subject to the provisions of this section, in any prosecution in the High Court the information of the prosecutor may relate to 2 or more distinct offences, whether alternative or cumulative.
(2) No information for the offence of murder shall charge any other offence except manslaughter.
(3) No information for the offence of rape shall charge any other offence except indecent assault and an attempt to commit rape.
Cf. 1915, No. 40, s. 305
275. Relation between information and conviction - On an information for any offence the accused may be convicted either of the offence charged in the information or of any offence which is included within the offence so charged and which might lawfully have been charged in the same information.
Cf. 1915, No. 40,s. 306
276. Withdrawal of information - (1) An information in the High Court for any offence may at any time, whether before or during the trial, be withdrawn by the prosecutor with the leave of a Judge of the Court, but not otherwise.
(2) An information so laid and withdrawn shall not operate as a bar to any further proceedings against the accused in respect of the same offence.
Cf. 1915, No. 40, s. 307
In its application to Tokelau, this section was modified by inserting after the words "High Court" the words "or the Commissioner for Atafu or for Fakaofo or for Nukunonu" by regulation 2(2)(b) of the Tokelau Crimes Regulations 1975 (S.R. 1975/279).
277. Drawing up. of conviction - (1) On the conviction of any person of any offence before the High Court, a minute or memorandum of the conviction shall thereupon be drawn up and preserved as a record of the Court, and a formal conviction under the seal of the Court may be drawn up at any time afterwards when it becomes necessary.
(2) In the meantime the conviction and sentence may be carried into execution, and shall have the same force and effect in every respect as if the conviction had been formally drawn up under the seal of the Court.
Cf. 1915, No. 40, s. 308
278. Defects of summons, or warrant - (1) No objection shall be m or allowed to any information, summons, or warrant in any criminal proceedings before the High Court for any alleged defect therein in substance or in form, or for any variance between the information, summons, or warrant and the evidence adduced at the trial.
(2) The High Court may at any stage of the trial amend the information in such manner as it thinks fit in respect of any such defect or variance.
(3) Where under subsection (2) of this section any information is amended by substituting one offence for another, the following provisions shall apply:
(a) Subject to the provisions of paragraphs (b) and (c) of this subsection, the trial shall be continued as if the accused had originally been charged with the substituted offence;
(b) Before the trial is continued, the substance of the information as amended shall be stated to the accused and he shall be asked how he pleads; and, if he pleads guilty, the High Court may convict him or deal with him in any other manner authorised by law;
(c) Any evidence already given shall be deemed to have been given in and for the purposes of the trial of the information as amended, but either party shall have the right to examine or cross-examine or re-examine any witness whose evidence has already been given in respect of the offence originally charged.
(4) The High Court may, at the request of the accused, if it is of opinion that he would be embarrassed in his defence by reason of any amendment made or proposed to be made under this section, adjourn the trial.
Cf. 1915, No. 40, s. 309
279. Payment of witnesses - Any witness at a criminal trial may, if the judge thinks fit and certifies accordingly, be paid out of [the Niue Government Account] such allowance for his expense and loss of time as is so certified, subject to such rules of Court as may he made in that behalf.
The reference to the Niue Government Account was substituted for a reference to the Niue Assembly Account by s 2(2)(f) of the Niue Amendment Act 1974.
280. Court may order convicted person to come up for sentence if caned upon - (1) The Court, on convicting an accused person of an offence under any enactment may, having regard to the circumstances, including the nature of the offence and the character of the offender, instead of passing sentence, order the offender to appear for sentence if called upon to do so, on such conditions as it thinks fit, including, if the Court thinks fit, a condition that the offender shall be subject to supervision for such period as the Court specifies, not exceeding the period specified in or pursuant to subsection (3) of this section, by a person to be nominated from time to time by the [Premier].
(2) The making of an order under this section shall not limit or affect the power of the Court, under any enactment applicable to the offence, to make any order for the payment of costs, damages, or compensation, or for the restitution of any property, notwithstanding that the offender is not sentenced on conviction, and the provisions of every such enactment shall apply accordingly.
(3) Any person in respect of whom an order is made under this section may be called upon to appear for sentence within any period specified by the Court in the order, bring a period not exceeding 3 years from the date of the conviction, or if no period is so specified, within one year from the date of the conviction.
(4) Where any person is brought up for sentence under this section, the Court may, after inquiry into the circumstances of the case and the conduct of the offender since the order was made, sentence or otherwise deal with the offender for the offence in respect of which the order was made.
Cf. 1915, No. 40, s. 310A; 1962, No. 40, s. 9; 1964, No. 70, s. 57(1); 1965, No. 1, s. 3(3)
In subs. (1) the word "Premier" was substituted for the words "Resident Commissioner" by s. 2(1) of the Niue Amendment Act 1974.
281. Conviction without sentence or discharge without conviction - (1) If on any criminal trial the Court thinks that the charge, though proved, is in the particular case of so trifling a nature or was committed under such circumstances that no punishment should be imposed, the Court may convict the accused and discharge him without sentence, either unconditionally or on such conditions as the Court thinks fit to impose.
(2) If any person who is so convicted and discharged on conditions commits any breach of those conditions, he shall be guilty of an offence punishable in the same manner as the offence of which he was so previously convicted.
(3) Without limiting the powers conferred on the High Court by subsection (1) of this section, where any person is accused of any offence, the High Court, after inquiry into the circumstances of the case, may in its discretion discharge him without convicting him, unless by any enactment applicable to the offence a minimum penalty is expressly provided for. A discharge under this subsection shall be deemed to be acquittal.
(4) The High Court, when discharging any person under subsection (3) of this section, may if it is satisfied that the charge is proved against him, make any order for the payment of costs, damages, or compensation, or for the restitution of any property , at it could have made under any enactment applicable to the offence with which he is charged if it had convicted him and sentenced him, and the provisions of every such enactment shall apply accordingly.
Cf. 1915, No. 40, s. 311
[282. Bail - (1) When any person is admitted to or released on bail under this Act or under any other enactment, he shall, with or without sureties, enter into a bail bond in favour of Her Majesty the Queen in such sum as may be required, conditioned in such manner as may be appropriate to the particular case and as may be required.
(2) Every such bond shall be in a form from time to time prescribed by [[the Chief Justice of the High Court]], or, if no such form is prescribed by him, in any suitable form.
(3) Every such bond shall be taken by and before a Judge of the High Court, a Magistrate, or the Registrar of the High Court, or, where a person is released on bail pursuant to section 255A of this Act, by a constable in charge of the police station.
(4) Every such bond shall be signed by the person admitted to or released on bail and by his sureties (if any) and the signature of that person and of each of his sureties (if any) shall be attested by a Judge of the High Court, a Magistrate, the Registrar of the High Court, or a constable.
(5) When any person is admitted to or released on bail, the Judge of the High Court, Magistrate, or constable admitting or releasing him may require him to deposit with that Judge, Magistrate, or constable or with the Registrar of the High Court a sum of money (being not greater than the amount of the recognisance entered into in the bond). Any such sum so deposited with a Judge, Magistrate, or constable shall, as soon as reasonably possible after the deposit, be paid by the person with whom it was deposited to the Registrar of the High Court.
(6) Where any person admitted to or released on bail has fully performed the conditions of his bond, the bond shall be void and any sum deposited by him pursuant to subsection (5) of this section shall be forthwith repaid to him but without any interest.
(7) Where any person admitted to or released on bail fails to perform any condition of his bond, the Registrar of the High Court shall fix a place and time at and on which the High Court may consider the estreat of the bond, and shall, not less than 7 clear days before the time fixed, cause to be served on the person admitted or released on bail (if he can be found) and upon the sureties (if any) notice that, unless at the place and time fixed some person bound by the bond proves to the satisfaction of the High Court that it ought not to be warranted, the bond may be estreated.
(8) If at the time and place fixed by the Registrar under subsection (7) of this section no sufficient cause to the contrary is shown, the High Court, on proof of non-performance of the bond to such amount as it thinks fit as to any. person bound thereby upon whom notice is proved to have been served in accordance with subsection (7) of, this section, and the whole or any part of any sum deposited under subsection (5) of this section may (but otherwise without prejudice to the rights of Her Majesty the Queen under the estreated bond) be forfeited accordingly to Her Majesty the Queen:
Provided that, if the Court is satisfied that the person admitted to or released on bail cannot be found, it may estreat the bond at against him, notwithstanding that the notice has not been served on him:
Provided also that no bail bond shall be estreated save by a Judge of the Court.
(9) Any sum payable in connection with any estreated bond shall be recoverable as if it were a fine.
(10) Where any person has been admitted to or released on bail, any surety under the bail bond entered into by that person may, at any time and at any place, without warrant arrest and seize that person while he is not in the custody of the law and deliver him into the custody of a constable and, on any such delivery, the surety shall cease to be liable under the bond.
This section was substituted for the original s. 282 by s. 9 of the Niue Amendment Act 1970.
In subs. (2), the reference to the Chief Justice of the High Court was substituted for a reference to the Chief Judge of the High Court by s. 2(2)(g) of the Niue Amendment Act 1974.
283. Stay of proceedings by Cabinet - In any criminal prosecution, the [Cabinet] may direct a stay of proceedings, and the proceedings shall be stayed accordingly.
Cf. 19155 No. 40, s. 313
The word "Cabinet" was substituted for the word "Attorney-General" by s. 2(1) of the Niue Amendment Act 1974.
284. Search warrants - (1) Any judge of the High Court or Magistrate who is satisfied on the oath of any person that there is reasonable ground for believing that there is in any building, ship, aircraft, receptacle, or place-
(a) Anything which there is reasonable ground to believe will afford evidence as to the commission of any offence; or
(b) Anything in respect of which any offence has been or is suspected of having been committed; or
(c) Anything which there is reasonable ground for believing to be intended to be used for the purpose of committing any offence-
may, by warrant under his hand, authorise some constable or other officer of the Niue Public Service to search the building, ship, aircraft, receptacle, or place for any such thing, and to seize and bring it before the person by whom the warrant has been issued.
(2) Every such warrant shall be executed by day (that is to say, after sunrise and before sunset), unless the warrant expressly authorises the execution thereof by night.
(3) Every such warrant may be executed by reasonable force if necessary.
(4) When any such thing is seized and brought before the person by whom the warrant was issued, he may either order it to be detained for the purpose of evidence on the trial of any person for any such of offence as aforesaid or may direct it to be delivered to any person believed by the person so issuing the warrant to be entitled thereto.
(5) No such order of delivery shall, in any manner affect the right of any person to the ownership or possession of the thing.
(6) Any thing so ordered to be detained as evidence of an offence, may be detained 'm pursuance of -the order for such time as is reasonably necessary for the purpose of any proceedings instituted or to be instituted in respect of the offence.
Cf. 1915, No. 40, s. 314
[284A. Power to enter premises to arrest offender or prevent offence - (1) Where any constable is authorised by this Act or by any other enactment to arrest any person without warrant, that constable, and all persons whom he calls to his assistance, may enter on any premises, by reasonable force if necessary, to arrest that person if the constable-
(a) Has found that person committing treason (as defined in section 73 of the Crimes Act 1961) or any offence punishable by imprisonment and is freshly pursuing that person; or
(b) Has good cause to suspect that that person has committed any such offence on those premises.
(2) Any constable, and all persons whom he calls to his assistance, may enter on any premises, by reasonable force if necessary, to prevent the commission of any offence that would be likely to cause immediate and serious injury to any person. or property, if he believes, on reasonable and probable grounds, that any such offence is about to be committed.
(3) If, in any case to which this section applies, the constable is not in uniform and any person in actual occupation of the premises requires him to produce evidence of his authority, he shall before entering on the premises produce his badge or other evidence that he is a constable.
(4) Nothing in this section shall affect in any way the power of any constable to enter any premises pursuant to a warrant.]
This section was inserted by s. 25 of the Niue Amendment Act 1971.
285. Transmission of certain warrants and orders by telegram - (1) Where, as a result of the exercise by the Governor-General of the prerogative of mercy of the Crown or of a judgment by the [Court of Appeal] of New Zealand on an appeal from the High Court or of a judgment of the Privy Council on an appeal from the [Court of Appeal] of New Zealand, any person held in custody in Niue is entitled to be released from custody, the warrant signed by the Governor-General or, as the case may be, the order of the [Court of Appeal] or of the Privy Council may be transmitted to Niue by telegram, and the telegraphic copy shall be sufficient authority to all persons concerned to release that person accordingly.
(2) In this section the term "telegram" includes a radiogram, a cablegram, and any similar means of communication.
In subs. the words "Court of Appeal", wherever they occur, were substituted the words "Supreme Court" by s. 2(1) of the Niue Amendment Act 1974.
286. Pardon and remission of sentenced - (1) When any person has been convicted of an offence by the High Court, whether before or after the commencement of this Act, the Governor-General, by warrant signed by him, may pardon the offender, or may remit any portion of a sentence of imprisonment passed upon the offender or any portion of a fine imposed upon him.
(2) In the case of an offender sentenced to imprisonment for a term of less than one year or to pay a fine not exceeding [$100], the [Cabinet] may exercise the like powers of pardon or remission.
(3) In the case of an offender sentenced to imprisonment for a term of one year or more, the [Cabinet] may, if the conduct and industry of the offender have been satisfactory, remit not more than one-fourth of the sentence.
(4) Any such pardon or remission may be made subject to such conditions as the Governor-General or, as the case may be, the [Cabinet] thinks fit, including in the case of the remission of part of the sentence of an offender undergoing a sentence of imprisonment, if the Governor-General [or the Cabinet, as the case may be], thinks fit, a condition that, until a date specified by the Governor-General [or the Cabinet, as the case may be], (being, in the case of an offender undergoing a sentence of life imprisonment, such date as the Governor-General thinks fit, and in any other case a date not later than the date of the expiry of the term of the original sentence), he shall be subject to supervision by a person to be nominated from time to time [by the Premier], and shall comply with the directions of that person with respect to such matters as the Governor-General [or the Cabinet, as the case may be], specifies.
(5) For the purposes of this section, cumulative terms of imprisonment shall be treated as one term.
(6) The Governor-General may in like manner pardon any offender who has given evidence which leads to the conviction of an accomplice.
(7) Where any person is granted a free pardon under this section, that person shall be deemed never to have committed the offence:
Provided that the granting of a free pardon shall not affect anything lawfully done or the consequences of anything unlawfully done before it is granted.
(8) Nothing in this section shall affect the prerogative of mercy.
Cf. 1915, No. 40, s. 314B; 1965, No. 1, s. 3; 1965, No. 56, s. 2
In subss. (2) and (3) the word "Cabinet" was substituted for the words "Resident Commissioner, with the concurrence of the Executive Committee of Niue" by s. 2(1) of the Niue Amendment Act 1974.
In subs. (4) the word "Cabinet" was substituted for the words "Resident Commissioner" with such concurrence as aforesaid", and the words "or the Cabinet, as the case may be", wherever they occur, were substituted for the words "the Resident Commissioner, as the case may be" and the words "by the Premier" were substituted for the words "by the Resident Commissioner" by s. 2(1) of the Niue Amendment Act 1974.
287. Compensation for loss of property - (1) On the conviction of any person for any offence, the High Court may order the offender to pay to any person such sum as it thinks fit by way of compensation for any loss or damage to property suffered by that person through or by means of the offence.
(2) Where on the arrest of the offender any money was taken from him, the High Court may in its discretion order the whole or any part of the money to be applied to any such payment.
(3) Any order for payment under this section may enforced in the same manner as a fine.
(4) An order under this section shall not affect the right of any person to recover by civil proceedings any sum in excess of the amount recovered under the order.
PART VII
As to the application of this Part to Tokelau, see the Tokelau Crimes Regulations 1975 (S.R. 1975/279.)
LAW OF EVIDENCE
288. Definitions - In this Part of this Act, unless the context otherwise requires,-
"Court" includes any person acting in any judicial capacity or having by law or by consent of parties authority to hear, receive, and examine evidence;
"Proceedings" includes any action, trial, inquiry, cause, or matter, whether civil or criminal, depending or to be inquired of or determined in or by any Court.
Cf. 1915, No. 40, s. 315
289. Discretionary power of admitting or rejecting evidence - (1) Subject to the provisions of this Act, a Court may in any proceedings admit and receive such evidence as it thinks fit, and accept and act on such evidence as it thinks sufficient, whether that evidence is or is not admissible or sufficient at common law.
(2) A Court may in any proceedings refuse to receive any evidence, whether admissible or not at common law, which it considers irrelevant, or needless, or unsatisfactory as being hearsay or other secondary evidence.
Cf. 19 15, No. 40, ss. 316, 317
290. All witnesses competent - Subject to the provisions of this Part of this Act, no witness in any proceedings shall be deemed incompetent by reason of interest or on any other ground whatever.
Cf. 19 15, No. 40, s. 318
291. Evidence of parties and their husbands and wives - In any civil proceedings the parties thereto, and the persons on whose behalf the proceedings are brought or defended, and the husbands and wives of those parties or persons respectively, shall be competent and compellable to give evidence an behalf of either or any of the parties to the proceedings.
Cf. 1915, No. 40, s. 319
292. Evidence of accused persons and their husbands and wives - (1) Every person charged with any offence shall be competent but (except where the contrary is expressly provided any enactment) not a compellable witness upon his trial for that offence.
(2) The wife or husband of any person charged with an offence shall be a competent witness on the trial of that person, but shall not be a compellable witness, except in the following cases:
(a) When called as a witness by the accused;
(b) When the offence of which the accused is charged is an offence against the wife or husband of the accused or against a child of the accused.
(3) If any witness who under this section is competent but not compellable gives evidence on any such trial, he shall be liable to cross-examination in the same manner as if he were a compellable witness, whether the matter on which he is so cross-examined arises out of his examination in chief or not.
Cf. 1915, No. 40, s. 320
293. Cross-examination as to credit - In any proceedings the Court may limit in any manner and to any extent which it think fit the cross-examination of any witness as to credit, and shall refuse to permit any such cross-examination which is needlessly offensive or injurious to the witness, having regard to the nature or gravity of the imputations made against him, to the importance of his evidence, and to the effect of those imputations upon his credibility.
Cf. 1915, No. 40, s. 321
294. Criminating questions - Nothing in this Part of this Act shall take away or affect the privilege of any witness to refuse to answer any question which may tend to criminate him.
Cf. 1915, No. 40, s. 322
295. Evidence of prisoners - (1) On application made in that behalf by any person who states on oath that any prisoner can give material evidence in any proceedings in any Court, a judge of the High Court may, by order under his hand, require the prisoner to be brought up for examination as a witness in the proceedings.
(2) In every such case the judge may, before making such an order, require the applicant to deposit a sum sufficient to pay the expense of bringing up the prisoner, maintaining him while out of prison, and returning him thither, including the expense of his custody in the meantime.
Cf. 1915, No. 40, s. 323
296. Judicial notice of Acts, etc. - In all proceedings the Court shall take judicial notice of all Acts [of the Niue Assembly or of the Parliament of New Zealand],. . . Orders in Council, regulations, Proclamations, and laws in force in Niue, including Niuean custom so far as it has the force of law under this Act.
Cf. 1915, No. 40, s. 324; 1965, No. 1, s. 3(1)
The words in square brackets were inserted by s. 2(1) of the Niue Amendment Act 1974. The word "Ordinances" has been omitted as otiose.
In its application to Tokelau this section was modified by substituting the word "enactments" for the words "Acts, Acts of the Niue Assembly, Order in Council, regulations, Proclamations" by regulation 2(2)(b) of the Tokelau Crimes Regulations 1975 (S.R. 1975/279). This regulation did not take into account the words inserted by s. 2(1) of the Niue Amendment Act 1974. See the wording of this section as now so amended.
297. Judicial notice of seals, etc. - In every proceeding the Court shall take judicial notice of the Seal of Niue and of the seal of any Court, officer, or other person authorised or required by law to use any such seal, and of the signature of any Judge or any officer, whether, judicial or not, of the Niue Public Service, and of the Public Seal of New Zealand, and of the signature of the Governor-General or of any member of the Executive Council of New Zealand, or of the Attorney-General or Solicitor-General of New Zealand, and of the signature of any Judge of the Supreme Court of New Zealand, and of the seal of that Court or of any Registrar thereof.
Cf. 1915, No. 40, s. 325; 1957, No. 103, s. 95(1)
298. Power to administer oaths - All Courts are hereby empowered to administer an oath to all such witnesses as are lawfully called or voluntarily come before them, or to take the affirmation of any such witness instead of an oath.
Cf. 1915, No. 40, s. 326, 299.
299. Form of oath - Except when the person making the oath consents to any other form of oath, an oath shall, whether in judicial or other proceedings, be made in the following form:
The officer administering the oath shall address to the person making the oath the following words: "Do you swear by Almighty God that the evidence you are about to give touching the matter now before the Court shall be the truth, the whole truth, and nothing but the truth?", or words to the like effect, and the person making the oath shall thereupon, while holding in his hand a copy of the Bible, Old Testament, or New Testament, indicate his assent to the oath so administered by uttering the words "I do", or other words to the like effect.
Cf. 1915, No. 40, ss. 327, 328, 300.
300. Absence of religious belief - Where an oath has been duly made, the fact that the person making it had at the time of making it no religious belief shall not for any purpose affect the validity of the oath.
Cf. 1915, No. 40, s. 329
301. Affirmation may be made instead of oath - Every person shall be entitled as of right to make his solemn affirmation instead of an oath in cases in which an oath is required or allowed by law, and that affirmation shall be of the same force and effect as an oath.
Cf. 1915, No. 40, s. 330(1)
302. Form of affirmation - The officer administering an affirmation shall address to the person making the affirmation the following words:
"Do you solemnly, sincerely, and truly affirm that. the evidence you are about to give touching the matter before the Court shall be the truth, the whole truth, and nothing but the truth?", or words to the like effect, and the person, making the affirmation shall thereupon indicate his assent to the affirmation so administered by uttering the words "I do", or other words to the like effect.
Cf. 1915, No. 40, s. 330(2)
303. Evidence of children without oath - In any proceedings all witnesses who are or appear to be under the age of 12 years may be examined without oath, but any such witness shall in that case be required before being examined to make the following declaration: "I promise to speak the truth, the whole truth, and nothing but the truth", or a declaration to the like effect; and such a declaration shall be of the same force and effect as if the witness had taken an oath.
Cf. 1915, No. 40, s. 331
304. Necessity of oath - Subject to the provisions of this Act, all witnesses in any judicial proceedings, civil or criminal, shall be examined on oath.
Cf. 1915. No. 40, s. 332
PART VIII
EXTRADITION
Extradition from Niue to New Zealand or to the Cook Islands
305. Arrest in Niue of fugitive offenders from New Zealand or the Cook Islands - When a warrant has been lawfully issued by any competent authority in New Zealand or in the Cook Islands for the arrest of any person and that person is suspected of being in Niue or of being about to come into Niue, a Judge of the High Court may, if he is satisfied in any manner that the warrant has been issued, and whether it has been produced to him or not, issue his warrant for the arrest of that person in Niue, and that warrant shall be addressed to such person or persons as the judge thinks fit.
Cf. 1915, No. 40, s. 333
306. Order of return to New Zealand or to the Cook Islands - On the arrest of any person in pursuance of a warrant so issued by a judge of the High Court, the person so arrested shall be forthwith brought before the High Court, which may, on the production of the original warrant issued in New Zealand or in the Cook Islands, order the return of that person to New Zealand or to the Cook Islands, as the case may be.
Cf. 1915, No. 40, s. 334
307. Refusal of order in case of hardship - The High Court may refuse to make any such order if, having regard to the nature of the charge or to the circumstances of the case, the Court is of opinion that the return of that person to New Zealand or to the Cook Islands would be the cause of undue hardship or would otherwise be unjustifiable or inexpedient.
Cf. 1915, No. 40, s. 335
308. Imprisonment or release pending return - Pending the making of any such order of return, or pending the return of any such person to New Zealand or to the Cook Islands, the High Court may either commit him to prison or admit him to bail in such manner and on such conditions as the Court think fit.
Cf. 1915, No. 40, s. 336
309. Release on security instead of return - (1) Instead of making such an order of return,, the High Court may release that person on bail conditioned for the payment of such sum or sums of money or the performance, of such conditions with relation to the matters in respect of which the original warrant was issued in New Zealand or the Cook Islands as the High Court thinks fit.
(2) On any breach of the conditions on which that person has been so released, he may be again arrested in Niue under a warrant issued by a judge of the High Court, and an order for his return to New Zealand or to the Cook Islands may be made in the same manner as if he had not been so released.
Cf. 1915, No. 40, s. 337
310. Return to New Zealand or to the Cook Islands in custody - Any person against whom an order of return to New Zealand or to the Cook Islands has been so made shall, so soon as practicable thereafter, be taken from Niue to New Zealand or to the Cook Islands, as the case may be, in the custody of such person as a judge of the High Court may approve, and, in the case of a person against whom an order of return to New Zealand has been made, shall on arrival in New Zealand be there delivered into the custody of a constable, to be dealt with in the same manner as if he had been arrested in New Zealand in pursuance of the original warrant issued there for his arrest.
Cf. 1915, No. 40, s. 338
311. Cancellation of order of return - If any person so ordered to be returned to New Zealand or to the Cook Islands is not returned in accordance with the order within a reasonable time after the making thereof, the High Court may cancel the order.
Cf. 1915, No. 40, s. 339
Extradition from New Zealand to Niue
312. Arrest in New Zealand of fugitive offenders from Niue - When a warrant has been lawfully issued by any competent authority in Niue for the arrest of any person, and that person is suspected of being in New Zealand or of being about to come into New Zealand, a Stipendiary Magistrate in New Zealand my, if he is satisfied in any manner that the warrant has been issued, and whether it has been produced to him or not, issue his warrant for the arrest of that person in New Zealand, and that warrant shall be addressed to such person or persons as the Magistrate thinks fit.
Cf. 1915, No. 40, s. 340
313. Order of return to Niue - On the arrest of any person in pursuance of any warrant so issued by a Magistrate, the person so arrested shall be forthwith brought before a Magistrate in New Zealand, who may, on the production of the original warrant issued in Niue, order the return of that person to Niue.
Cf. 1915, No. 40, s. 341
314. Judicial notice of signature to warrant - On making any such order, the Magistrate may take judicial notice of the signature to the warrant issued in Niue, and may receive such evidence as he thinks fit, whether legally admissible in other proceedings or not.
Cf. 19 15, No. 40, s. 342
315. Refusal of order in case of hardship - A Magistrate may refuse to make any such order if, having regard to the nature of the charge or to the circumstances of the case, the Magistrate is of opinion that the return of that person to Niue would be the cause of undue hardship or would otherwise be unjustifiable or inexpedient.
Cf. 1915, No. 40, s. 343
316. Imprisonment or release pending return - Pending the making of any such order of return, or pending the return of any such person to Niue, a Magistrate may either commit him to prison or admit him to bail in such manner and on such conditions as the Magistrate thinks fit.
Cf. 19 15, No. 40, s. 344; 1950, No. 92, s. 15
317. Release on security instead of return - (1) Instead of making such an order of return, the Magistrate may release that person on bail conditioned for the payment of such sum or sum of money or the performance of such conditions with relation to the matter in respect of which the original warrant was issued in Niue as the Magistrate thinks fit.
(2) On any breach of the conditions on which that person has been so released, he may be again arrested in New Zealand under a warrant issued by a Magistrate, and an order for his return to Niue may be made in the same manner as if he had not been so released.
Cf. 19 15, No. 40, s. 345
318. Return to Niue in custody - Any person against whom an order of return to Niue has been so made shall, so soon as practicable thereafter, be taken from New Zealand to Niue in the custody of such person as a Magistrate may approve, and shall on arrival in Niue be there delivered into lawful custody, to be dealt with in the same manner as if he had been arrested in Niue in pursuance of the original warrant issued there for his arrest.
Cf. 1915, No. 40, s. 346
319. Cancellation of order of return - If any person so ordered to be returned to Niue is not returned in accordance with the order within a reasonable time after the making thereof, a Magistrate or a Judge of the Supreme Court may cancel the order for his return.
Cf. 1915, No. 40, s. 347
Application of Extradition Act to Niue
320. Extradition Act in force in Niue - (1) Subject to the provisions of this Act, the Extradition Act 1965, so far as it is applicable, shall extend to and be in force in Niue.
(2) In the application of the Extradition Act 1965 to Niue, unless the context otherwise requires,-
(a) Every reference in that Act to New Zealand shall be read as a reference to Niue;
(b) Every reference in that Act to. the Court, or to the Supreme, Court or, a Judge thereof, or to a Magistrate or Justice, shall be read as a reference to the High Court of Niue or a Judge of that Court;
(c) Every reference in that Act to the Minister of Justice shall be read as a reference to the Minister of Justice acting with the concurrence of [the Minister of Foreign Affairs];
(d) The reference in the definition of the expression "extradition offence" in subsection (1) of section 2 of that Act to the crimes described in the First Schedule to that Act shall be read as a reference to such of the criminal offences described in Part V of this Act as correspond to the crimes described in Part I of that Schedule, and also as a reference to such of the enactments specified in Part II of that Schedule as are in force in Niue;
(e) The references in subsection (2) of section 2 of that Act to sections 310, 311, and 312 of the Crimes Act 1961 shall be read as references to sections 228, 229, 232, 235, and 237 of this Act, as the case may require;
(f) The references in subsections (3) and (4) of section 5 of that Act [(as amended by section 5(2) of the Criminal Justice Amendment Act 1969) to Part VA of the Criminal Justice Act 1954 and Part IV of the Mental Health Act 1969] shall be read as references to sections 617 and 619 of this Act, as the case may require;
(g) The references in sections 8 and 15 of that Act to the preliminary hearing of an information for an indictable offence shall be read as references to the trial of an offence punishable by the High Court in the ordinary course of its criminal jurisdiction and procedure;
(h) The reference in section 8 of that Act to the Summary Proceedings Act 1957 shall be read as a reference to this Act, and the reference in that section [(as amended by section 5(2) of the Criminal Justice Amendment Act 1969) to Part VA of the Criminal Justice Act 1954] shall be construed as a reference to sections 616, 618, and 619 of this Act.
Cf. 1915, No. 40, s. 349A; 1965, No. 44, s. 18(1)
In subs. (2)(c) the reference to the Minister of Foreign Affairs was substituted for a reference to the Minister of Island Affair, (as amended by s. 8(2) of the Maori and Island Affairs Department Act 1968) by s. 2(4)(a) of the Niue Amendment Act (No. 2) 1974.
In subs. (2)(f) the words in square brackets were substituted for the words "to sections 31 and 38 of the Mental Health Act 1911" by s. 5(3)(a) of the Criminal Justice Amendment Act 1969.
In subs. (2)(h) the words in square brackets were substituted for the words "to sections 32, 34, and 35 of the Mental Health Act 1911" by s. 5 (3)(b) of the Criminal Justice Amendment Act 1969.
Subject to this section, the Extradition (United States of America) Order 1970 is in force in Niue. See S.R. 1970/240/3.
PART IX
CROWN SUITS
321. Crown proceedings in Niue - (1) Subject to this Act, the Crown Proceedings Act 1950, so far as it is applicable, shall extend to and be in force in Niue.
(2) In the application of the Crown Proceedings Act 1950 to Niue, unless the context otherwise requires,-
(a) Every reference in that Act to the Crown or Her Majesty shall be construed as including a reference to Her Majesty in respect of the Government of Niue;
(b) Every reference in that Act to New Zealand shall be construed as a reference to Niue;
(c) Every reference in that Act to any Court shall be construed as including a reference to the High Court of Niue and to the Land Court of Niue;
(d) Every reference in that Act to an officer of the Crown shall be construed, in relation to Her Majesty in respect of the Government of Niue, as including a reference to . . . any servant of Her Majesty in respect of the Government of Niue and as not including any Judge or any [Commissioner] or other judicial officer;
(e) Every reference in that Act to the Attorney-General or any Minister of the Crown shall be construed, in relation to Her Majesty m respect of the Government of Niue, as a reference to [the Cabinet of Ministers];
(f) Every reference in that Act to the Solicitor-General shall be construed, in relation to Her Majesty in respect of the Government of Niue, as including a reference to the Registrar of the High Court of Niue;
(g) Every reference in sections 20 to 23 of that Act to the Supreme Court shall be construed, in relation to Her Majesty m respect of the Government of Niue, as a reference to the High Court of Niue;
(h) The reference in subsection (3) of section 24 of that Act to the Governor-General shall be construed, in relation to Her Majesty in respect of the Government of Niue, as a reference to [the Cabinet of Ministers]; and all money payable under that subsection shall be payable out of [the Niue Government Account].
(3) Subsection (2) of section 8, section 9, and subsection (2) of section 29 of the Crown Proceedings Act 1950 shall not extend to or be in force in Niue.
(4) Civil proceedings to which Her Majesty is a party or third party in respect of the Government of Niue shall be conducted on behalf of Her Majesty by such person as [the Cabinet of Ministers] may appoint for the conduct thereof.
Cf. 1915, No. 40, s. 350; 1950, No. 54, s. 32(1); 1957, No. 103, s. 95(1); 1965, No. 1, s. 3(1)
In subs. (2)(d) the words "the Resident Commissioner of Niue and" were omitted, and the word, "Commissioner" was substituted for the words "other Commissioner", by s. 2(1) of the Niue Amendment Act 1974.
In subss. (2)(e) and (h), and (4) the references to the Cabinet of Ministers wen substituted for references to the Resident Commissioner by s. 2(2)(c) of the Niue Amendment Act 1974.
In subs. (2)(h) the reference to die Niue Government Account was substituted for a reference to the Niue Assembly Account by s. 2(2)(f) of that Act.
322. Repealed by s. 2(1) of the Niue Amendment Act 1974.
PART X
CROWN LAND
323-334. Repealed by s. 103 of the Niue Amendment Act (No. 2) 1968.
PART XI
THE LAND COURT OF NIUE
335-385. Repealed by s. 103 of the Niue Amendment Act (No. 2) 1968.
PART XII
THE LAND APPELLATE COURT OF NIUE
386-404. Repealed by s. 103 of the Niue Amendment Act, (No. 2) 1968.
PART XIII
CUSTOMARY LAND
405-414. Repealed by s. 103 of the Niue Amendment Act (No. 2) 1968.
PART XIV
PARTITION AND EXCHANGE OF NIUEAN LAND
415-430. Repealed by s. 103 of the Niue Amendment Act (No. 2) 1968.
PART XV
ALIENATION OF NIUEAN LAND
431-460. Repealed by s. 103 of the Niue Amendment Act (No. 2) 1968.
PART XVI
LAND DEVELOPMENT
461. Application of this Part - The Land Court may, with the consent of [the Leveki Mangafaoa or] a majority of the owners, by order declare that any [Niuean land] shall be subject to the provisions of this Part of this Act for such period as may be defined in the order, and the period fixed by the order may be extended by the Court from time to time.
(2) The Land Court may by order direct that any land shall be no longer subject to the provisions of this Part of this Act, and thereupon [the Cabinet of Ministers) shall cease to have any right of control in respect thereof, but without releasing the land or any of the parties from any antecedent liability incurred to or by [the Cabinet of Ministers]; and [the Cabinet of Ministers] may, notwithstanding the order of the Court, continue to exercise [the Cabinet's powers] of creation and enforcement of charges hereunder so long as any such liability remains.
Cf. 1946, No. 40, s. 54; 1965, No. 1, s. 3(2)
In subs. (1) the words "the Leveki Mangafaoa or" were substituted for the words "land owned by Niueans", by s. 102(1) of the Niue Amendment Act (No. 2) 1968. A definition of the term "Niuean land" in s. 2 of this Act was repealed by s.102(1) of that Act, but see s. 102(2) of that Act.
In subs. (2) the reference to the Cabinet of Ministers, wherever they occur, were substituted for references to the Resident Commissioner by s. (2)(c) of the Niue Amendment Act 1974, and the words "the Cabinet's powers" were substituted for the words, "his powers" by s. 2(1) of that Act.
462. Cabinet of Ministers may cultivate land on behalf of owners - (1) Where any land has been declared by the Land Court to be subject to the provisions of this Part of this Act, [the Cabinet of Ministers] may, subject to any lease, licence, or other alienation to which the land is subject, cultivate, use, and manage the whole or any part or parts of the land, and may carry on any agricultural business or any other business or occupation connected with the land and the produce thereof on behalf of and for the benefit of [the Leveki Mangafaoa or] the owners or such Niueans as may be interested in the business carried on.
(2) For the purpose of any such business, [the Cabinet of Ministers] may-
(a) Purchase or otherwise acquire implements or other personal property as [the Cabinet thinks] expedient, and may also sell or otherwise dispose of all crops or other personal property acquired, held, grown, or produced by [the Cabinet of Ministers] in the course of the business;
(b) Provide, erect, maintain, and equip stores, factories, sheds, offices, or buildings of any kind;
(c) Do all other things reasonably necessary for the development and operation of the business, and for the improvement of the land.
(3) Subject to the control of the Commission, [the Cabinet of Ministers] may employ all such servants or agents as [the Cabinet thinks] necessary, at such remuneration as [the Cabinet thinks] fit.
(4) [The Cabinet of Ministers] may enter into an agreement in writing with any Leveki Mangafaoa for farming, or farming on shares, or cropping on shares with reference to any land being administered or dealt with under this Part of this Act, for such period and upon such conditions as to remuneration or otherwise as [[the Cabinet of Ministers]] thinks fit. Any such agreement shall be in the name of [[the Cabinet of Ministers]], and shall be as effective [[as if the Cabinet were]] the legal owner of the land mentioned herein.]
(5) [The Cabinet of Ministers] may retain any part of the revenue derived from the operation of any business as a reserve fund for expenditure in the management of the business, and may from time to time, as [the Cabinet thinks] fit, either expend the reserve fund accordingly or may apply it or any part of it in any other manner in accordance with his Part of this Act.
(6) [The Cabinet of Ministers] may from time to time expend such sum or sums as [the Cabinet considers] expedient for the purposes of carrying an any business.
(7) [The Cabinet of Ministers] shall be entitled to make a reasonable charge for administration, and an expenses and liabilities (including administration expenses) incurred by [the Cabinet of Ministers] in the conduct of any business shall be a charge upon the revenue [received by the Cabinet] from the business as well as upon the lands whereon the business is conducted.
(8) [The Cabinet of Ministers] may make advances to [the Leveki Mangafaoa or] any Niuean beneficiary in respect of [the Cabinet's share] or interest in the profits of the business, either by way of anticipation or otherwise.
(9), All sums of money advanced by [the Cabinet of Ministers], whether on account of the business generally or to [the Leveki Mangafaoa or any owner], shall constitute a charge upon the land and shall bear interest at such rate as [the Cabinet of Ministers] shall from time to time determine. The Land Court may make separate orders evidencing any charge in respect of different pieces of land or in respect of different parts of or interests in any piece of land, and for that purpose may apportion, in such manner and in such proportions as it thinks just and equitable, any money secured or proposed to be secured by any charge.
[(10) The provisions of any [[Act of the Niue Assembly]] or other enactment prohibiting the assignment of rents or profits shall apply to all advances or other money which are or may become payable to the, Leveki Mangalaoa or any owner in respect of his share or interest in the profits of the business. No person other than the Leveki Mangafaoa or a Niuean beneficiary shall be capable of acquiring any beneficial interest except by will or by order of the land Court in any crops or chattels held by [the Cabinet of Ministers] or in any revenue derived or to arise therefrom, nor shall the interest of the Leveki Mangafaoa or the beneficial interest of any Niuean beneficiary be liable to be taken in execution or attached or become assets in the bankruptcy of a Niuean beneficiary.]
(11) Nothing in [any [Act of the Niue Assembly]] prohibiting alienation by way of security] shall apply to any land that is subject to the provisions of this Part of this Act.
Cf. 1946, No. 30, s. 55; 1965, No. 1, s. 3(2)
In subss. (1) to (10) the references to the Cabinet of Ministers, wherever they occur, were substituted for references to the Resident Commissioner by s. 2(2)(c) of the Niue Amendment Act 1974.
In subss. (1) and (8) the words "the Leveki Mangafaoa" were inserted by s. 102(1) of the Niue Amendment Act (No. 2) 1968.
In subss. (2)(a), (3), and (5) the words "the Cabinet thinks" wherever they occur, were substituted for the words "he thinks" by s. 2(1) of the Niue Amendment Act 1974.
Subs. (4) was substituted for the original subs. (4) by s. 10(1) of the Niue Amendment Act 1970.
In subs. (4), the words "as if the Cabinet were" were substituted for the words "as if he were" by s. 2(1) of the Niue Amendment Act 1974.
In subs. (6) the words "the Cabinet considers" were substituted for the words "he considers" by s. 2(1) of the Niue Amendment Act 1974.
In subs. (7) the words "received by the Cabinet" were substituted for the words "received by him" by s. 2(1) of the Niue Amendment Act 1974.
In subs. (8) the words "The Cabinet's share" were substituted for the words "his share" by s. 2(1) of the Niue Amendment Act 1974
In subs. (9) the words "the Leveki Mangafaoa or any owner" were substituted for the words "a beneficial or other owner" by s. 102(1) of the Niue Amendment Act (No. 2) 1968.
Subs. (10) was substituted for the original subs. (10) by s. 102(1) of the Niue Amendment Act (No. 2) 1968.
In subs. (10) the reference to any Act of the Niue Assembly was substituted for a reference to any Ordinance by s. 2(2)(e) of the Niue Amendment Act 1974.
In subs. (11) the words "any Act of the Niue Assembly prohibiting alienation by way of security" (the reference to any Act of the Niue Assembly being substituted for a reference to any Ordinance by s. (2)(e) of the Niue Amendment Act 1974) were substituted for the words "section 437 this Act (prohibiting alienation by way of security)" by s. 102(1) of the Niue Amendment Act (No. 2) 1968.
463. Disposal of revenues received by Cabinet of Ministers - Revenues received by [the Cabinet of Ministers] from any land subject to this Part of this Act or from any business carried on under this Part shall from time to time be applied as follows:
(a) In defraying the cost of the administration of the land or business;
(b) In paying all rates, taxes, and other assessments and outgoings payable by [the Cabinet of Ministers] in respect of the land or business;
(c) In the discharge, to such extent as may be required or as [the Cabinet of Ministers] thinks fit, of any mortgage, charge, encumbrance, or liability to which the land or business is subject;
(d) In payment of sums (if any) set apart to meet any charge for improvements made upon the land;
(e) For any other purposes in connection with the administration, improvement, and settlement of the land from which the revenues are derived, or for any other purposes of general utility to [the Leveki Mangafaoa or] the Niuean owners of that land;
(f) In paying at the times and in the manner prescribed the residue of the revenues to [the Leveki Mangafaoa or] the Niuean owners or other persons having any estate or interest in the land or business in accordance with their respective interests.
Cf. 1946, No. 30, s. 46; 1965, No. 1, s. 3(2)
The references to the Cabinet of Ministers, wherever they occur, were substituted for references to the Resident Commissioner by s. 2(2)(c) of the Niue Amendment Act 1974.
In subss. (e) and (f) the words "the Leveki Mangafaoa or" were inserted by s. 102(1) of the Niue Amendment Act (No. 2) 1968.
464. Money to be paid out of or into Niue Government Account - (1) All money expended or advanced by [the Cabinet of Ministers] under this Part of this Act shall be paid out of [the Niue Government Account.]
(2) All money received by [the Cabinet of Ministers] under this Part of this Act shall be paid into [the Niue Government Account].
Cf. 1946, No. 30, s. 57; 1957, No. 103, s. 95(2); 1965, No. 12 s. 3(2)
In subss. (1) and (2) the references to the Cabinet of Ministers were substituted for references to the Resident Commissioner by s. 2(2)(c) of the Niue Amendment Act 1974, and the references to the Niue Government Account were substituted for references to the Niue Assembly Account by s. 2(2)(f) of that Act.
465. Repealed by s. 2(1) of the Niue Amendment Act 1974.
466. Interference and obstruction prohibited - (1) Except with the consent of [the Cabinet of Ministers], no person shall be entitled to exercise any rights of ownership in respect of any land that is subject to this Part of this Act.
(2) Every person is liable to imprisonment for a term not exceeding 3 months or to a fine not exceeding [$40] who-
(a) Wilfully trespasses on any such land, and neglects or refuses to leave the land after being warned to do so by any person authorised in that behalf by [the Cabinet of Ministers];
(b) Wilfully obstructs, hinders, or delays any officer, or workman in the performance of his duties under this Part of this Act, or otherwise obstructs or interferes with the carrying out of any works under this Part of this Act.
(3) In any proceedings for an offence against this section in respect of any land, the fact that the defendant has an interest in the land shall not be a defence.
(4) No proceedings shall be commenced under this section except with the consent of [the Cabinet of Ministers].
Cf. 1946, No. 30, s. 59; 1965, No. 1, s. 3(2)
In subss. (1), (2), and (4) the references to the Cabinet of Ministers were substituted for references to the Resident Commissioner by s. 2(2)(c) of the Niue Amendment Act 1974.
467. Repealed by s. 2(1) of the Niue Amendment Act 1974.
PART VII
HOUSING IMPROVEMENT
468-483. Repealed by s. 27 (1) of the Niue Amendment Act 1971.
PART XVIII
VESTING ORDERS
484-448. Repealed by s. 103 of the Niue Amendment Act (No. 2) 1968.
PART XIX
NIUEAN SUCCESSION
489. Wills of Niueans - (1) No will made by a Niuean shall have any force or effect with respect to his interest in Niue land.
(2) No will made by a Niuean shall be valid unless, in addition to complying with the provisions of the Wills Act 1837 of the United Kingdom Parliament and the amendments of that Act that are in force in Niue, one of the attesting witnesses thereof is a judge or Commissioner of the High Court or of the Land Court, a Solicitor of the Supreme Court of New Zealand, a Justice of the Peace for Niue, or the Registrar of the High Court or of the Land Court.
(3) Every person referred to in subsection (2) of this section so attesting the will of a Niuean shall, before attesting it, satisfy himself that the testator understands the effect thereof, and shall certify on the will that he believes the testator to understand the effect thereof; but no will shall be invalidated or be deemed to be informally attested by reason of any breach of the provisions of this subsection.
(4) Notwithstanding anything in subsection (2) or subsection (3) of this section, a will may be executed by a Niuean in any place out of Niue in the manner in which a European may execute a will in Niue.
(5) Notwithstanding anything in subsection (2) of this section any will made by a Niuean before the commencement of this Act which would, have been valid if this Act had not been passed shall continue to be valid after the commencement of this Act.
Cf. 1915, No. 40, s. 445; 1962, No. 40, s. 11
490. Succession to deceased Niueans - [Subject to Part VIII of the Niue Amendment Act (No. 2) 1968 and to every other enactment, the persons entitled on the death of a Niuean to succeed to his estate (other than an. interest in Niuean land) } so far as not disposed of by his will, and the shares in which they are so entitled, shall be determined in accordance with Niuean custom, so far as such custom extends; and shall be determined, so far as there is no Niuean custom applicable to the case, in the same manner as if the deceased were a European.
Cf. 1915, No. 40, s. 446; 1950, No. 92, s. 11(3)
The words in square brackets were substituted for the words "The persons entitled on the death of a Niuean to succeed to his real estate (other than customary land) and to his personal estate" by s. 102(1) of the Niue Amendment Act (No. 2) 1968.
491. Niuean land not to vest in administrator - The interest of a Niuean in Niuean land shall in no case vest in his administrator by virtue of letters of administration.]
This section was substituted for the original s. 491 by s. 102(1) of the Niue Amendment Act (No. 2) 1968.
492-496. Repealed by s. 103 of the Niue Amendment Act (No. 2) 1968.
497. Niuean land not assets for payment of debts - The interest of any person in Niuean land shall not upon his death be assets available for the payment of his debts and liabilities, whether to the Crown or otherwise; but this section shall not affect the operation of any charge to which that land is subject at the death of the deceased.
Cf. 1915, No. 40, s. 453; 1950, No. 92, s. 11(3)
498. Estate of Niuean other than land to be assets for payment of debts - The estate of a Niuean (other than his interest in Niuean land) shall upon his death be assets for the payment of his debts and liabilities in the same manner and to the same extent as if he had been a European.
Cf. 1915, No. 40, s. 454
499. Repealed by s. 103 of the Niue Amendment Act (No. 2) 1968.
PART XX
TRUSTEES FOR NIUEANS
500. Definition of "person under disability" - In this Part of this Act the term "person under disability" means any person who is a minor, or of unsound mind, or in prison, or who is subject to any physical or mental infirmity which in the opinion of the Land Court renders him unfit to have the management of his property.
Cf. 1915, No. 40, s. 493
501. Trustee orders - If any Niuean, being a person under disability, is entitled to any interest in any [property (other than an interest in Niuean land)], the Land Court may, if it thinks fit, on the application of that person or of any other person make an order (hereinafter called a trustee order) appointing any person or persons to be the trustee or trustees of the person so under disability in respect of the property or any part thereof to which he is so entitled (hereinafter called the trust property).
Cf. 1915, No. 40, s. 494; 1950, No. 92, s. 11(3)
The words in square brackets were substituted for the words "real or personal property (other than customary land)" by s. 102(1) of the Niue Amendment Act (No. 2) 1968.
502. Matters to be set forth in trustee orders - (1) Every trustee order shall state the nature of the disability of the beneficiary, and, if that disability consists in minority, the order shall state the age of the beneficiary.
(2) Except where the order states the day of the birth of the beneficiary, any such statement as to his age shall be construed as meaning that he attained that age on the date of the order, but it shall not be necessary for the Court in making any such order to make any inquiry as to the day of the birth of the beneficiary.
(3) Any such statement as to the age of the beneficiary may be amended, but, notwithstanding any error in that statement, every act done at any time by the trustee shall be as valid as if the statement for the time being contained in the trustee order was correct, and no act done by the beneficiary in respect of the property comprised in the order after the date therein indicated as the date of his majority shall be invalidated on the ground that the beneficiary was not in fact of the age of 21 years.
(4) Every trustee order shall define the nature of the property in respect of which it was made and the nature of the interest of the therein.
Cf. 1915, No. 40, s. 495
503. Appointment of new trustees - (1) Where it is made to appear to the Land Court that it is expedient to appoint a new trustee, the Court may, by a trustee order, appoint new trustee or new trustees either in substitution for or in addition to any existing trustee, and whether there is any existing trustee or not at the time of making the order.
(2) Any person so appointed shall, unless otherwise provided by the order, have the same powers as if appointed by the original order.
Cf. 1915, No. 40, s. 496
504. Orders restricting powers of trustees - By a trustee order or by any subsequent order, the Court may prohibit or restrict, in such manner as it thinks fit, the exercise by the trustee of any powers which would otherwise be vested in him under this Act, and the Court may at any time remove or vary any such prohibition or restriction.
Cf. 1915, No. 40, s. 497
505. Cancellation of trustee orders - The Court may at any time make an order cancelling or varying a trustee order.
506. Determination of trustee orders - When a trustee order has been made on the ground of the minority of the beneficiary, the powers of the trustee shall cease and determine, without any order in that behalf, so soon as the beneficiary attains his majority and the trustee order shall thereupon cease to be in force.
Cf. 1915, No. 40, s. 499
507. Trust property not to vest in trustee - Notwithstanding anything to the contrary in any rule of law or equity, the trust property shall not vest in a trustee appointed by a trustee order, but shall remain vested in the beneficiary for the same estate and interest as if no such order had been made.
Cf. 1915, No. 40, s. 500
508. Administration of property by trustee - Subject to this Part of this Act and to any order of the Land Court to the contrary, every such trustee shall be entitled to the possession, receipt, and administration of the trust property and of all revenues to be derived therefrom, and he shall in the exercise of all powers conferred upon him by this Act be deemed to be the agent of the beneficiary.
Cf. 1915, No. 40, s. 501
509. Alienation of property by trustee - (1) Except so far as expressly provided by order of the Land Court, any such trustee shall, in respect of the alienation or other disposition of any . . . property included in the trust (other than an alienation or disposition thereof by will), represent the beneficiary, and may accordingly exercise in the name and on behalf of the beneficiary all powers in respect of the alienation or other disposition of any [such property] which the beneficiary might himself have exercised had he been under no disability and had no such trustee been appointed.
(2) So long as any trustee order remains in force, the beneficiary shall not be capable of exercising any powers in respect of the alienation or disposition of the trust property, other than a disposition thereof by will if he is possessed of testamentary capacity.
Cf. 1915, No. 40, s. 502
In subs. (1) the words "Niuean land or other" were omitted, and the words "such property" wen substituted for the words "such land or property" by s. 102(1) of the Niue Amendment Act (No. 2) 1968.
510. Powers of trustee - Except so far as otherwise provided by order of the Land Court, any such trustee may do, in the name and on behalf of the beneficiary, all things in relation to the trust property which he considers necessary or expedient for the advantageous administration of that property in the interests of the beneficiary, and which the beneficiary could himself have done had he been under no disability and had no such trustee been appointed.
Cf. 1915, No. 40, s. 503
511. Expenditure of revenues of trust property - (1) The Land Court may from time to time make such orders as it thinks fit for the payment or expenditure of any of the revenues or proceeds of the trust property to or for the benefit of the beneficiary, or for the maintenance of the children, adopted children, wife, or husband of the beneficiary.
(2) The right of the beneficiary to the receipt or expenditure of any such money, and his right in any other respect to control the administration of the trust shall at all times while the trustee order remains in force be subject to the discretion of the trustee and to the order of the Court.
Cf. 1915, No. 40, s. 504
512. Enforcement of trusts - The Land Court shall have jurisdiction to enforce, by injunction or otherwise, as against any trustee under this Part of this Act, the obligations of his trust, and to hear, and determine as against any such trustee any pecuniary claim arising out of a breach of trust.
Cf. 19 15, No. 40, s. 505
513. Co-trustees must act jointly - When 2 or more trustees hold office under any trustee order in respect of the same property, those trustees must act jointly in the exercise of the trust, and no such powers shall be exercisable by less than the full number of trustees so appointed, notwithstanding the existence of any vacancy in that number.
Cf. 1915, No. 40, s. 506
514. Remuneration of trustees - Any such trustee may be allowed out of the revenues or proceeds of the trust property, by way of remuneration for his services in administering that property, such reasonable sums as the Land Court from time to time orders, in addition to all costs, charges, and expenses incurred by him in the execution of his trust.
Cf. 1915, No. 40, s. 507
PART XXI
MARRIAGE
See the Niue Marriage Regulations 1970 (S.R. 1970/249).
515. Prohibited degrees of consanguinity or affinity - (1) With respect to marriage, the prohibited degrees of consanguinity and affinity shall be the same in Niue as for the time being in New Zealand, and every marriage entered into between persons within those prohibited degrees shall be wholly void.
(2) Notwithstanding anything in subsection (1) of this section, any persons who are not within the degrees of consanguinity but are within the degrees of affinity so prohibited may apply to the High Court for its consent to their marriage, and the Court, in its discretion, may make an order dispensing with that prohibition so far as it relates to the parties to the application, and, if such an order is made, that prohibition shall cease to apply to the parties.
Cf. 1915, No. 40, s. 508
516. Marriages to take place before marriage officer - Every marriage in Niue shall take place in the presence of a marriage officer as hereinafter defined, and of at least 2 other witnesses, and otherwise shall be wholly void.
Cf. 1915, No. 40, s. 509
517. "Marriage Officer" defined - The term "marriage officer" means-
(a) Repealed by s. 2(1) of the Niue Amendment Act 1974;
(b) Any Judge or Commissioner of the High Court or of the Land Court, the Registrar of the High Court or of the Land Court, or any Judge of the Land Appellate Court;
(c) Any person appointed as a marriage officer under the provisions of section 518 of this Act.
Cf. 1915, No. 40, s. 510; 1946, No. 30, s. 52; 1964, No. 70, s. 57(1); 1965, No. 1, s. 3(3)
518. Appointment of marriage officers - (1) [The Cabinet may under] the Seal of Niue, appoint as a marriage officer for Niue any minister of religion or other person whom [the Cabinet believes] to be a fit and proper person to be so appointed.
[(2) Any such appointment may be at any time revoked by the Cabinet, by warrant under the Seal of Niue.]
Cf. 1915, No. 40, s. 511; 1957, No. 103, s. 95(1); 1964, No. 70, s. 57(1); 1965, No. 1, s. 3(3)
In subs. (1) the words "The Cabinet may under" were substituted for the words "The Resident Commissioner may, by warrant under his hand and", and the words "the Cabinet believes" were substituted for the words "he believes", by s. 2(1) of the Niue Amendment Act 1974.
Subs. (2) was substituted for the original subs. (2) by s. 2(1) of the Niue Amendment Act 1974.
519. Offence - If any person acts as a marriage officer in Niue without being qualified by office or appointment so to act, he is liable to imprisonment for a term not exceeding 3 years.
Cf. 1915, No. 40, s. 512
520. Notice of marriage - (1) A marriage officer shall not solemnise or record any marriage, unless notice in writing of the intention of the parties to enter into the marriage has been given to the marriage officer by one of the parties thereto at least 2 clear days before the day of the marriage.
(2) On receipt of that notice, the marriage officer shall publish it in such manner as he thinks sufficient to give due publicity to the intended marriage.
(3) On every such notice there shall be payable by the person giving it such fee (if any) as may be prescribed by regulations, and all such fees shall be payable into [the Niue Government Account].
(4) No marriage shall be invalidated by any breach of the requirements of this section.
Cf. 1915, No. 40, s. 513; 1957, No. 103, s. 95(1); 1965, No. 1, s. 3(1)
In subs. (3) the reference to the Niue Government Account was substituted for a reference to the Niue Assembly Account by s. 2(2)(f) of the Niue Amendment Act 1974.
521. Mode of solemnisation - Every marriage shall, subject to the provisions of this Part of this Act, be solemnised in such manner as the marriage officer thinks fit.
Cf. 1915, No. 40, s. 514
522. Record of marriage - Every marriage shall, at the time of the solemnisation thereof, be recorded in writing by the marriage officer in the form and with the several particulars prescribed by regulations under this Act, but no marriage shall be invalidated by any error or defect in that form or in the particulars so required to be recorded.
Cf. 1915, No. 40, s. 515
523. Signature of record - The aforesaid record of every marriage shall be signed by the parties thereto, and by 2 witnesses, and by the marriage officer, all being present at the same time, and when the record has been so signed the marriage shall be deemed to be fully solemnised and shall take effect.
Cf. 1915. No. 40, s. 516
524. Transmission of record - The record of every marriage shall be forthwith delivered by the marriage officer to the Registrar of the High Court, and shall be preserved by the Registrar in the same manner as if it was a record of the High Court.
Cf. 1915, No. 40, s. 517
525. Minimum age of marriage - A marriage officer shall not solemnise or record any marriage, unless the husband is at least 18 years of age and the wife is at least 15 years of age, but no marriage shall be invalidated by a breach of the provisions of this section.
Cf. 1915, No. 40, s. 518
526. Marriage of minors - (1) A marriage officer shall not solemnise or record the marriage of any man under the age of 21 years or of any woman under the age of 19 years without the consent of one of the parents of the man or woman if either of those parents is alive and resident in Niue.
(2) A judge of the High Court may in any case, if he thinks fit so to do, grant exemption from the requirements of this section.
(3) No marriage shall be invalidated by any breach of the provisions of this section.
Cf. 1915, No. 40, s. 519
527. Offence by marriage officer - If any marriage officer commits any breach of the provisions of this Part of this Act, or signs any record of a marriage containing any statement known by him to be false, he is liable to a fine not exceeding [$100].
Cf. 1915, No. 40, s. 520
528. Signature of false record by party or witness - Every party or witness to a marriage who signs a record thereof containing any statement known by him or her to be false is liable to imprisonment for a term not exceeding 6 months or to a fine not exceeding [$40].
Cf. 1915, No. 40, s. 521
529. Misrepresentation as to facts to procure marriage - Every person who, by any -wilful misrepresentation made to a marriage officer, procures or attempts to procure the solemnisation by that officer of any marriage is liable to imprisonment for a term not exceeding one year.
Cf. 1915, No. 40 s. 522
PART XXII
DIVORCE
530. Jurisdiction of High Court in divorce - The High Court shall have jurisdiction in divorce in accordance with the provisions of this Part of this Act.
Cf. 1915, No. 40, s. 524
531. Nullity of marriage and dissolution of voidable marriage - The High Court shall in proceedings for nullity of marriage or of dissolution of a voidable marriage* have and exercise in Niue the same jurisdiction as is possessed for the time being in New Zealand* by the Supreme Court.
*The New Zealand law at 1 August 1990 is in Part IV of the Family Proceedings Act 1980. There is no jurisdiction over voidable marriages. The nullity jurisdiction is vested in the Family Court.
532. Limitation of jurisdiction - No decree shall be made for a divorce a mensa et thoro, or for restitution of conjugal rights, nor shall any action be brought for criminal conversation.
533. Domicile and residence - For the purposes of this Part of this Act-
(a) The domicile of a married woman who is a minor shall be determined as if she were an adult;
(b) A domicile or residence in any part of the Cook Islands at any time before the commencement of this Act shall be deemed to have been at that time a domicile or residence in Niue.
Cf. 1915, No. 40, s. 529
534. Grounds of divorce and jurisdiction of High Court - (1) Subject to the provisions of subsection (2) of this section, any married person (hereinafter called the petitioner) may take proceedings in the High Court for the dissolution of his or her marriage with the other party to the marriage (hereinafter called the respondent) on any ground specified in subsection (3) of this section.
(2) No proceedings for divorce may be taken in the High Court unless-
(a) The petitioner or the respondent is at the commencement of the proceedings domiciled in Niue; and
(b) Where the ground alleged in the petition is one of those specified in paragraphs (l), (m), and (n) of subsection (3) of this section, has been domiciled or resident in Niue for 2 years at least immediately preceding the filing of the petition.
(3) A petition for divorce may be presented to the High Court on one or more of the following grounds, and on no other ground:
(a) That the respondent has since the solemnisation of the marriage been guilty of adultery;
(b) That the respondent, being the wife of the petitioner, has since the solemnisation of the marriage and without the consent of the petitioner been artificially inseminated with the semen of some man other than the petitioner;
(c) That the respondent without just cause has wilfully deserted the petitioner and without just cause has left the petitioner continuously so deserted for 3 years or more;
(d) That the respondent-
(i) Being the petitioner's husband, has for 3 years or more been an habitual drunkard or drug addict, and has either habitually left, his wife without means of support or habitually been guilty of cruelty towards her; or
(ii) Being the petitioner's wife, has for a like period been an habitual drunkard or drug addict, and has either habitually neglected her domestic duties and rendered herself unfit to discharge them or habitually been guilty of cruelty towards him;
(e) That the respondent has since the of the marriage been convicted of attempting to commit the murder of the petitioner or any child (of any age) of the petitioner or respondent, or has been convicted of any offence under section 151 of this Act of section 191 of the Cook Islands Act 1915 (which relate to causing grievous bodily harm) against the petitioner or any such child;
(f) That the respondent has since the solemnisation of the marriage been convicted of incest , attempted rape or assault with intent to commit rape against any child (of any age) of the petitioner or respondent, or of sexual intercourse or attempted sexual intercourse with any such child under 15 years of age;
(g) That the respondent, being the husband of the petitioner, has committed rape or buggery since the solemnisation of the marriage;
(h) That the respondent has since the solemnisation of the marriage been convicted of murder;
(i) That the respondent is a person of unsound mind and is unlikely to recover, and has been a patient for a period or periods of no less in the aggregate than 7 years within the period of 10 years immediately preceding the filing of the petition;
(j) That the respondent is a person of unsound mind and is unlikely to recover, and has been continuously a person of unsound mind for a period of 7 years immediately preceding the filing of the petition, and has been a patient during the final 3 years of the said period of 7 years;
(k) That the respondent is a person of unsound mind and is unlikely to recover, and has been a patient for a period of 5 years immediately preceding the filing of the petition;
(l) That the petitioner and respondent are parties to an agreement for separation, whether made by deed or other writing or orally, and that the agreement is in full force and has been in full force for no less than 3 years;
(m) That-
(i) The petitioner and respondent are parties to a decree of separation made in New Zealand, or a separation order made in Niue or in New Zealand or in the Cook Islands, or to a decree, order, or judgment made in any other country if that decree, order, or judgment has in that country the effect that the parties are not bound to live together; and
(ii) That decree of separation, separation order, or other decree, order, or judgment is in full force and has been in full force for not less than 3 years;
(n) That the petitioner and respondent are living apart and are unlikely to be reconciled, and have been living apart for not less than 7 years.
(4) Proof that the respondent has been convicted by any Court of any of the offences specified in paragraphs (c) to (h) of subsection (3) of this section shall for the purposes of that subsection be conclusive proof that he has committed that offence.
(5) In subsection (3) of this section, the term "patient" means a person detained under an order of medical custody made under Part XXVI of this Act or under Part XXI of the Cook Islands Act 1915; and includes a person receiving care and treatment as a resident (otherwise than as [an informal patient] in [a hospital] within the meaning of [the Mental Health Act 1969] or in a like institution in any country outside New Zealand; and also includes a person detained in an institution under Part IV of that Act or under the corresponding provisions of the law of any country outside New Zealand.
Cf. 1921, No. 14, s. 10 (1)
As to subs. (3)(e), section 191 of the Cook Islands Act 1915 was repealed by s. 2(a) of the Cook Islands Amendment Act 1970.
In subs. (5) the Mental Health Act 1969, being the corresponding enactment in force at the date of this reprint has been substituted for the repealed Mental Health Act 1911, and the reference to an informal patient being the corresponding term used in the Mental Health Act 1969, has been substituted for a reference to a voluntary patient in the repealed Mental Health Amendment Act 1961, and the reference to a hospital was substituted for a reference to an institution by s. 129(5) of the Mental Health Act 1969.
535. Grounds of refusal of divorce - If the Court is of opinion-
(a) That, in the case of a petition based on a matrimonial wrong, the petitioner's own habits or conduct induced or contributed to the wrong complained of so as to disentitle the petitioner to a divorce or the petitioner has condoned the wrong complained of; or
(b) That, in the case of the adultery of the respondent, the petitioner has been in any manner accessory to or has connived at the adultery,-
the Court shall dismiss the suit; but, subject to the provisions of section 536 of this Act, in all other cases, if the Court is satisfied that the case of the petitioner has been established, the Court shall pronounce a decree of divorce.
Cf. 1915, No. 40, s. 528
536. Discretion to refuse decree in certain cases - (1) Where a petition for divorce is presented on any of the grounds specified in paragraphs (l), (m), and (n) of subsection (3) of section 534 of this Act, and the petitioner has proved his or her case, the High Court shall have a discretion whether or not to grant a decree of divorce:
Provided that the High Court shall not, in the exercise of that discretion, refuse to grant a decree by reason only of the adultery of either party after their separation.
(2) The High Court may dismiss any petition for divorce if there has been collusion between the petitioner and the respondent with intent to cause a perversion of justice.
Cf. 1915, No. 40, s. 528
537. Co-respondent as a party - In any proceedings in the High Court for divorce on the ground of adultery, the Court may, if it thinks fit, make the person with whom the respondent is alleged to have committed adultery a co-respondent in the proceedings.
Cf. 1915, No. 40, s. 531
538. Intervention - By leave of the High Court, any person may intervene in proceedings for divorce for the purpose of opposing the making of a decree of divorce.
Cf. .1915, No. 40, s. 532
539. Agreement no bar to divorce - No covenant or agreement between the parties to proceedings for divorce shall operate as a bar to the institution or prosecution of the proceedings.
Cf. 1915, No. 40, s. 533
540. No appeal to Court of Appeal - No appeal shall lie to the [Court of Appeal] of New Zealand from any decree of the High Court for divorce or of dissolution of a voidable marriage.
Cf. 1915, No. 40, s. 534
The words "Court of Appeal" were substituted for the words "Supreme Court" by s. 2(1) of the Niue Amendment Act 1974.
541. Remarriage of divorced persons - When a decree of divorce or of dissolution of a voidable marriage has been made by the High Court, it shall be lawful for the parties to the marriage to marry again as if the former marriage had been dissolved by death.
Cf. 1915, No. 40, s. 535
542. Costs - In any proceedings under this Part of this Act, the High Court may make such order as it think- fit for the payment of the costs of the proceedings, or any part thereof, by or to the petitioner, respondent, co-respondent, or any person intervening in the proceedings.
Cf. 1915, No. 40, s. 536
543. Order for maintenance of divorced wife - When a decree of divorce or of dissolution of a voidable marriage is made by the High Court, the Court may, if it thinks fit, in and by the decree, order the husband to pay towards the future maintenance of his wife (whether petitioner or respondent), so long as she remains unmarried, a reasonable sum at such times and in such manner as the Court thinks fit.
(2) Every such order shall be deemed to be a maintenance order under Part XXIII of this Act, and all the provisions of that Part of this Act shall, so far as applicable, apply thereto accordingly.
(3) In addition to or instead of making an order under subsection (1) of this section, the High Court may, when making any such decree, order the husband to pay to the wife such capital sum as the Court thinks fit.
Cf. 1915, No. 40, s. 537; 1948, No. 25, s. 3(1)
544. Order as to custody of children - (1) The High Court in and by any decree of divorce or of dissolution of a voidable marriage, or at any time and from time to time thereafter, make such order as it thinks fit as to the custody of the children of the marriage.
(2) The High Court may in and by any decree of nullity of marriage, or at any time and from time to time thereafter, make such order as it thinks fit as to the custody of the children of the parties to the void marriage.
Cf. 1915, No. 40, s. 538
545. Molestation of divorced wife by her husband - If, at any time after a decree of divorce or of dissolution of a voidable marriage has been pronounced at the suit of the wife, her former husband-
(a) Commits any trespass by entering or remaining upon or in any land, house, or building which is in her occupation or in which she dwells or is present; or
(b) Attempts or threatens to commit any such trespass; or
(c) Molests her by watching or besetting her dwellinghouse or place of business, employment, or residence, or by following or waylaying her in any road or other public place-
he is liable to imprisonment for a term not exceeding 3 months or to a fine not exceeding [$40].
Cf. 1915, No. 40, s. 539
546. Jurisdiction of Supreme Court - The jurisdiction of the Supreme Court of New Zealand under the Matrimonial Proceedings Act 1963* shall extend to Niue in the same manner as if Niue constituted for all purposes part of New Zealand, and a domicile or residence in Niue shall for the purposes of such jurisdiction be deemed to be a domicile or residence in New Zealand accordingly.
(2) In the exercise of that jurisdiction the Supreme Court shall, in respect of the grounds of divorce or of nullity of marriage or of dissolution of a voidable marriage and in respect of all other matters, act in accordance with the Matrimonial Proceedings Act 1963* and not in accordance with this Act.
Cf. 1915, No. 40, s. 540
*This Act is no longer N.Z. law. The jurisdiction no longer exists
PART XXIII
MAINTENANCE AND AFFILIATION
As to the enforcement of a maintenance order under the Tokelau Divorce Regulations 1975, see S.R. 1975/262/13(2).
547. Interpretation - In this Part of this Act, unless the context otherwise requires,-
"Adequate maintenance" means maintenance reasonably sufficient for the necessities of the person to be maintained, irrespective of the means or ability of the person who is bound to afford such maintenance;
"Affiliation order" means an order under this Part of this Act or under Part XX of the Cook Islands Act 1915 adjudging any person to be the father of a child born out of wedlock;
"Child" means a person under the age of 16 years;
"Defendant" means any person against whom a maintenance order or affiliation order is or has been made under this Part of this Act or under Part XX of the Cook Islands Act 1915 or is applied for under this Part of this Act;
"Destitute person" means any person unable, whether permanently or temporarily, to support himself by his own means or labour;
"Maintenance" includes lodging, feeding, clothing, teaching, training, attendance, and medical and surgical relief;
"Maintenance order" means an order under this Part of this Act for the payment of money for or in respect of the past or future maintenance of any person; and includes such an order made under Part XX of the Cook Islands Act 1915, and continuing in force at the commencement of this Act.
Cf. 1915, No. 40, s. 541; 1962, No. 40, s. 12
Maintenance and Affiliation Orders
548. Jurisdiction of High Court - The High Court shall have power in the ordinary course of its civil jurisdiction to make maintenance and affiliation orders in accordance with the provisions of this Part of this Act.
Cf. 1915, No. 40, s. 542
549. Applications - Any application to the High Court for or in relation to a maintenance order or an affiliation order may, except where otherwise expressly provided, be made either by the person in whose favour the order is to be or has been made or by any other person.
Cf. 1915, No. 40, s. 543
560. Jurisdiction discretionary - The exercise by the High Court of its jurisdiction to make a maintenance order shall in all cases be discretionary.
Cf. 1915, No. 40, s. 544
551. Affiliation orders - (1) On application made to the High Court by or by the authority of a woman who is the mother of a child or who is with child, the Court may, if it is satisfied that the defendant (not being her husband) is the father of that child, make an order (herein called an affiliation order) adjudging the defendant to be the father of that child accordingly.
(2) No affiliation order shall be so made unless the application is made before or within 6 years after the birth of the child; unless the defendant has contributed to or made provision for the maintenance of the child, or has since the birth of the child cohabited with the mother as man and wife, in which case the application may be made at any time after the expiration of the said period of 6 years, if within 2 years immediately preceding the application the defendant has contributed to or provided for the maintenance of the child or has so cohabited with its mother.
(3) If at any time the defendant has been absent from Niue, the period of his absence shah not be counted in computing the respective periods of 6 years or 2 years.
(4) No such application shall be made unless the child is under 1 A years of age at the time of the application 1
552. Evidence - (1) The evidence of the mother of the child or of any woman who is with child as aforesaid shall not be necessary for the making of an affiliation order.
(2) No person shall be adjudged to be the father of a child upon the evidence of the mother or of a woman who is with child as aforesaid, unless her evidence is corroborated in some material particular to the satisfaction of the Court.
Cf. 1915, No. 40, s. 546
553. Maintenance order in favour of child born out of wedlock - When an affiliation order has been made by the High Court against any person as the father of a child, whether already born or not, the Court may, at the same time or at any time thereafter, make a maintenance order in favour of the child against the person so adjudged to be the father thereof.
Cf. 1915, No. 40, s. 547
554. Maintenance order against father in favour of child - (1) The high Court may make a maintenance order against the father of any child (not being a child born out of wedlock) in favour of that child if the Court is satisfied that the father has failed or intends to fail to provide that child with adequate maintenance.
(2) When the father and child are living apart from each other, and the Court is satisfied that there is reasonable cause for the child continuing so to live apart from the father, the father shall not be deemed to have made provision for the adequate maintenance of the child merely by reason of the fact that he is ready and willing to support the child if and so long as the child lives with him.
Cf. 1915, No. 40, s. 548
555. Maintenance order against mother in favour of child - (1) The High Court may make a maintenance order in favour of a child against the mother of that child, if it is satisfied that the mother is of sufficient ability in that behalf and has failed or intends to fail to make provision for the adequate maintenance of the child.
(2) When the mother and child are living apart from each other, and the Court is satisfied that there is reasonable cause for the child continuing so to live apart from the mother, the mother shall not be deemed to have made provision for the adequate maintenance of the child merely by reason of the fact that she is ready and willing to support the child if and so long as the child lives with her.
Cf. 19 15, No. 40, s. 549
556. Maintenance order against husband in favour of wife - (1) The High Court may make a maintenance order against a husband in favour of his wife, if it is satisfied that the husband has failed or intends to fail to provide his wife with adequate maintenance.
(2) Unless the Court is satisfied that the wife is a destitute person, no maintenance order shall be made against the husband if it is proved that he is not of sufficient ability to contribute to her maintenance.
(3) When the husband and wife are living a art from one another and the wife has, in the opinion of the Court, reasonable cause for refusing or failing to live with her husband, the husband shall not be deemed to have provided her with adequate maintenance merely by reason of the fact that he is ready and willing to support her if and so long as she lives with him.
Cf. 1915, No. 40, s. 550
557. Maintenance order against wife in favour of husband - (1) The High Court may make a maintenance order against a married woman in favour of her husband, if it is satisfied that the husband is a destitute person and that his wife is of sufficient ability to contribute to his maintenance.
(2) No such order shall be made if the Court is satisfied that there is reasonable cause for the failure of the wife to contribute to the maintenance of her husband.
Cf. 19 15, No. 40, s. 551
558. Maintenance order against any person in favour of father or mother - The High Court may make a maintenance order against any person in favour of the father or mother of that person, if it is satisfied that the father or mother, as the case may be, is a destitute person and that the defendant is of sufficient ability to contribute to the maintenance of that destitute person.
Cf. 1915, No. 40, s. 552
559. Disobedience to maintenance order - Every person who disobeys a maintenance order shall be guilty of contempt of the High Court.
Cf. 1915, No. 40, s. 553
As to the application of this section to Tokelau, see the Tokelau Divorce Regulations 1975 (S.R. 1975/262/13(2)).
560. Maintenance money a debt - All money due under a maintenance c order shall constitute a debt due by the defendant to the person to whom the money is payable in accordance with the terms of the order.
Cf. 19 15, No. 40, s. 554
As to the application of this section to Tokelau, see the Tokelau Divorce Regulations 1975 (S.R. 1975/262/13(2)).
561. Order in favour of non-residents - A maintenance order may be made in favour of any person otherwise entitled thereto although not present or resident in Niue.
Cf. 1915, No. 40, s. 555
562. Order against non-residents - A maintenance or affiliation order may be made against any defendant otherwise liable although not present or resident in Niue.
Cf. 19 15, No. 40, s. 556
563. Orders in absentia - If the High Court is satisfied that a defendant is absent from Niue, or that his residence is unknown, or that he cannot be found, the Court may hear and determine the application ex parte and make a maintenance order or affiliation order accordingly.
Cf. 1915, No. 40, s. 557
564. Repeated applications - The dismissal of an application for a maintenance order or affiliation order shall not, unless the Court so orders, be a bar to the making of a further application in the same matter against the same defendant.
Cf. 1915, No. 40, s. 558
565. Payments not to be made in advance - (1) No money payable under a maintenance order shall, without the precedent consent of a Judge of the High Court, be paid more than one year in advance of the due date thereof.
(2) If any money is paid in breach of this section, it shall not be taken into account in any proceedings for the enforcement of the maintenance order or for the punishment of any disobedience thereto; but no money so paid in breach of this section shall be recoverable by the person by whom it was paid.
Cf. 1915, No. 40, s. 559
As to the application of this section to Tokelau, see the Tokelau Divorce Regulations 1975 (S.R- 1975/262/13(2)).
566. Cancellation, variation, and suspension of orders - (1) The High Court may at any time make an order cancelling an affiliation order, or cancelling, varying, or suspending any maintenance order or substituting a new maintenance order therefor, on the grounds-
(a) That the order was obtained by fraud or perjury; or
(b) That since the making of the order new and material evidence has been discovered; or
(c) That since the making of the order the circumstances have so changed that the order ought to be so cancelled, varied, or suspended, or that a new order ought to be substituted therefor.
(2) The power hereby conferred to cancel or vary an order shall include the power to remit wholly or in part any arrears due under the order, and any such arrears may be remitted either on the grounds hereinbefore in this section mentioned or, if the Court in its discretion think fit, on the ground that the defendant is not of sufficient ability to pay them.
Cf. 1915, No. 40, s. 560
567. Payment of maintenance money - Any maintenance order may direct the money payable thereunder to be paid either to the person in whose favour the order is made or to any other person on behalf of that person.
Cf. 1915, No. 40, s. 561
568. Security for obedience to maintenance orders - (1) Whenever a maintenance order is made, the High Court may, if it thinks fit, by the same order or by order made at any later time, direct the defendant to give security for his obedience to the maintenance order.
(2) Every such security shall, as the High Court determines, be either the payment into Court of such sum of money, not exceeding [$400], as the Court directs, or the giving of a bond to Her Majesty with one or 2 sureties to be approved by the Court in a sum not exceeding [$400] conditioned for due obedience to the maintenance order.
(3) When such security has been required, the Court may commit the defendant to prison until the order requiring security has been complied with, but no person shall be so detained in custody for a longer period than 6 months.
(4) All money so paid into Court or recovered by suit or otherwise under any. such bond shall be available, under the direction of the Court, for the satisfaction of all claims under the maintenance order.
(5) The Court may, on being satisfied that the security is no longer required, order any amount so paid into Court to be repaid to the defendant, or cancel any bond so given.
Cf. 1915, No. 40, s. 562
As to the application of this section to Tokelau, see the Tokelau Divorce Regulations 1975 (S.R. 1975/262/13(2)).
569. Operation of agreements - No agreement shall be effective so as to take away or restrict any liability imposed on any person by this Act to contribute to the maintenance of any other person, or affect the operation of any maintenance order or the right of the High Court to make any such order.
Cf. 1915, No. 40, s. 563
570. Purport and duration of maintenance orders - (1) Every maintenance order shall be an order for the periodical payment, at such times and in such manner as the Court thinks fit, of such sum of money as the Court thinks reasonable.
(2) The intervals between the successive payments shall not exceed 28 days.
(3) When any such order is made in respect of the maintenance of a child, the order shall cease to be in force so soon as that child attains the age of 16 years.
Cf. 1915, No. 40, s. 564; 1948, No. 25, s. 3(2); 1963, No. 132, s. 13(1)
571. Order for past maintenance - Any maintenance order may require the defendant, in addition to making such periodical payments as aforesaid, to pay such sum as the Court thinks reasonable, not exceeding [$100] on account of the past maintenance, previous to the making of the order, of the person in respect of whose maintenance the order is made.
Cf. 1915, No. 40, s. 565
Offences
572. Leaving Niue while maintenance money in arrear - Every person against whom a maintenance order has been made is liable to imprisonment for a term not exceeding 2 years, if, while any money payable under the order is in arrear and unpaid, he leaves or attempts to leave Niue without the permission in writing of a judge of the High Court.
(2) In any prosecution under this section the burden of proving that the permission of a judge was so given shall be upon the accused.
Cf. 1915, No. 40, s. 566
573. Leaving Niue after affiliation order and before birth of childbirth - Every person against whom an affiliation order is made before the birth of the child is liable to imprisonment for a term, not exceeding 2 years, if he leaves or attempts to leave Niue without the permission in writing of a Judge of the High Court at any time within 12 months after the making of the order.
(2) In any prosecution under this section the burden of proving that the permission of a Judge was so given shall be upon the accused.
Cf. 1915, No. 40, s. 567
574. Leaving Niue with intent to disobey maintenance order - Every person against whom a maintenance order has been made is liable to imprisonment for a term not exceeding 2 years, if he at any time thereafter leaves or attempts to leave Niue with intent to make default in obeying that order.
Cf. 1915, No. 40, s. 568
575. Leaving Niue while failing to maintain wife - (1) Every person is liable to imprisonment for a term not exceeding 2 years, if he without reasonable cause fails to provide his wife with adequate maintenance and at any time while failing so to do leaves or attempts to leave Niue without the permission in writing of a Judge of the High Court.
(2) In any prosecution under this section the burden of proving that the permission of a Judge was so obtained shall be upon the accused.
Cf. 1915, No. 40, s. 569
576. Leaving Niue while failing to maintain child - (1) Every person who is the father of a child is liable to imprisonment for a term not exceeding 2 years, if he without reasonable cause fails to provide that child with adequate maintenance and at any time while failing so to do leaves or attempts to leave Niue without the permission in writing of a judge of the High Court.
(2) In any prosecution under this section the burden of proving that the permission of a judge was so given shall be upon the accused.
Cf. 1915, No. 40, s. 570
577. Leaving Niue with intent to desert wife or child - Every person who is the husband of any woman or the father of any child is liable to imprisonment for a term not exceeding 2 years, if he leaves or attempts to leave Niue with the intention of failing without reasonable cause to make adequate provision for the maintenance of that wife or child during his absence.
Cf. 1915, No. 40, s. 571
578. Attempting to leave Niue - Every person shall be deemed to attempt to leave Niue within the meaning of this Part of this Act who does any act with intent to leave Niue.
Cf. 1915, No. 40, s. 572
579. Evidence of intent - In any prosecution for an offence against this Part of this Act, the fact that the defendant has at any time within 3 years after leaving Niue habitually made default in obeying an order of maintenance or in providing his wife or child with adequate maintenance shall be sufficient evidence, unless the contrary proved, that the defendant left Niue with intent so to is default.
PART XXIV
ADOPTION OF CHILDREN BY NIUEANS
580-592. Repealed by s. 103 of the Niue Amendment Act (No. 2) 1968.
PART XXV
ADOPTION OF CHILDREN BY EUROPEANS AND NIUEAN SPOUSES OF EUROPEANS
593-599. Repealed by s. 103 of the Niue Amendment Act (No. 2) 1968.
PART XXVI
PERSONS OF UNSOUND MIND
As to the application of this Part to Tokelau, see the Tokelau Divorce Regulations 1975. (S.R. 1975/262/4 (5)).
Orders of Medical Custody
600. Application by Medical Officer to High Court - Any Medical Officer may make application to the High Court for an order committing any person to medical custody under this Part of this Act on the ground that that person is of unsound mind.
Cf. 1915, No. 40, s. 574; 1923, No. 9, s. 5(1)
601. Medical certificates as to persons of unsound mind - No such order shall be made except on of the person alleged to be of unsound mind, and upon production to the Court of a certificate by the [Director of Health] or by 2 Medical Officers that the person in respect of whom the order is to be made is of unsound mind and that his detention in medical custody is necessary in his own interests or for the safety of other persons.
Cf. 1915, No. 40, s. 575; 1956, No. 27, s. 12(1); 1963, No 132, s. 16(1)
The words "Director of Health" were substituted for the words "Chief Medical Officer" by s. 18(3)(b) of the Niue Amendment Act 1971.
602. Order of medical custody - If the Court is satisfied on the examination of the person so alleged to be of unsound mind, and on hearing such further evidence (if any) as the Court thinks necessary, that he is of unsound mind and that his detention in medical custody is necessary in his own interests or for the safety of other persons, the Court may make an order (hereinafter called an order of medical custody) committing him to medical custody for such period as the Court thinks fit, not exceeding 6 months.
Cf. 1915, No. 40, s. 576
603. Renewal of order - Any such order may at any time and from time to time, whether before or after the expiry thereof, be renewed for such further period, not exceeding 6 months, as the Court on a further application and certificate as aforesaid thinks fit.
Cf. 1915, No. 40, s. 577
604. Cancellation of order - Any such order may be at any time cancelled by the High Court
Cf. 1915, No. 40, s. 578
605. Discharge from custody - Any person so committed to medical custody may at any time be discharged from custody by [the Cabinet of Ministers], and the order of medical custody shall thereupon lapse.
Cf. 1915, No. 40, s. 579
The reference to the Cabinet of Ministers was substituted for a reference to the Resident Commissioner by s. 2(2)(c) of the Niue Amendment Act 1974.
606. Arrest and detention of persons committed to medical custody - Any person against whom an order of medical custody has been so made may thereupon be arrested by any constable or Medical Officer, and shall, while the order remains in force, be detained at such hospitals or other places in Niue, and in the custody of such Medical Officer, as may from time to time be determined in that behalf by the [Director of Health], either generally or in respect of any particular case or class of cases.
Cf. 1915, No. 40, s. 580
The words "Director of Health" were substituted for the words "Chief Medical Officer" by s. 18 (3) (b) of the Niue Amendment Art 1971.
[607. Treatment of person so detained - Provision as to the custody, care, treatment, visitation, and discipline of all persons so committed to medical custody may be made by the Niue Assembly, by Act.]
This section was substituted for the original s. 607 by s. 2(1) of the Niue Amendment Act 1974.
608. Removal from Niue to New Zealand - when an order of medical custody has been so made against any person, the High Court may, at the same time or at any time thereafter while the order remains in force, issue under the seal of the Court a warrant for the removal of that person from Niue to New Zealand.
Cf. 1915, No. 40, s. 582
609. Conditions of removal - No such warrant shall be issued unless the Court is satisfied, on the certificate by the [Director of Health] or by 2 Medical Officers, and on the examination of the person alleged to be of unsound mind, that his removal from Niue to New Zealand is necessary in his own interests or for the safety of other persons.
Cf. 1915, No. 40, s. 583; 1956, No. 27, s. 12 (2); 1963, No. 132, s. 16(2)
The words "Director of Health" were substituted for the words "Chief Medical Officer" by s. 18(3)(b) of the Niue Amendment Act 1971.
610. Method of removal - On the issue of any such warrant for the removal of any person to New Zealand, he may be taken to New Zealand in the custody of any person appointed in that behalf by a Medical Officer in any ship belonging to Her Majesty or in any Commonwealth ship or in any aircraft which is approved by the [Director of Health] or 2 Medical Officers as suitable for the purpose.
Cf. 1915, No. 40, s. 584; 1923, No. 9, s. 5 (4); 1963, No. 132, s. 17
The words "Director of Health" were substituted for the words "Chief Medical Officer" by s. 18(3)(b) of the Niue Amendment Act 1971.
611. Admission to hospital of persons removed to New Zealand - (l) Where any person, in respect of whom a warrant for removal to New Zealand is made under section 608 of this Act arrives in New Zealand pursuant to the warrant, then, on the delivery to the Superintendent of [a hospital] within the meaning of [the Mental Health Act 1969] of copies, under the seal of the High Court, of that warrant, the order of medical custody made in respect of that person under section 602 of this Act, the application to the High Court for the last-mentioned order, and the certificate produced to the High Court pursuant to section 601 of this Act in respect of that application, the Superintendent shall receive that person and may detain him in [the hospital] in accordance with the provisions of this section.
(2) Where any person is received into [a hospitals] pursuant to this section, the order and wan-ant made or issued in respect of him under sections 602 and 608 of this Act shall be sufficient authority for his detention in [the hospital] for a period of 7 days.
(3) At any time before the expiration of that period, the Superintendent of [the hospital] may apply for a reception order under [the Mental Health Act 19693 in respect of the person so received into [the hospital]; and the fact that such an application has been made shall be sufficient authority for the Superintendent to detain that person until the application is finally determined.
Cf. 1915, No. 40, ss. 585,586; 1956, No. 27, s. 12(3)
In subss. (1) and (3) the Mental Health Act 1969, being the corresponding enactment in force at the date of this reprint, has been substituted for the repealed Mental Health Act 1911.
In subss. (1), (2), and (3) the references to a hospital, wherever they occur, were substituted for references to an institution by s. 129(5) of the Mental Health Act 1969.
612. Administration of estates of persons of unsound mind - [Part VII of the Mental Health Act 1969] (relating to the administration of the estates of [mentally disordered persons] shall in New Zealand extend and apply to property (other than interests in Niuean land) situated in Niue and belonging to a person of unsound mind.
Cf. 1915, No. 40, s. 587(1)
Part VII of the Mental Health Act 1969, being the corresponding enactment in force at the date of this reprint, has been substituted for the repealed Part VIII of the Mental Health Act 1911.
The reference to mentally disordered persons was substituted for a reference to mentally defective persons by s. 129(4) of the Mental Health Act 1969.
613. No committee of estate of person of unsound mind - The High Court shall have no jurisdiction to appoint a committee of the person or estate of a person of unsound mind.
614. Warrant for arrest of persons of unsound mind - Any person against whom an application has been made for an order of medical custody may be arrested by any constable or other person under a warrant issued by a Judge or the Registrar of the High Court.
Cf. 1915, No. 40, s. 588
615. Arrest without warrant of persons of unsound mind - Any person believed on reasonable grounds to be of unsound mind and to be dangerous to himself or others may be arrested without warrant by a constable or any other person, and shall be forthwith brought before a Judge or the Registrar of the High Court, . . . or before any officer of the Niue Public Service, who may from time to time make such order for his custody as is thought fit, pending the making and determination of an application for an order of medical custody.
Cf. 1915, No. 40, s. 589; 1956, No. 27, s. 13
The words "or before the Resident Commissioner" were omitted by s. 2(1) of the Niue Amendment Act 1974.
This Act was amended by the Niue Amendment Act 1975 of the Niue Assembly by inserting the following heading and section.
Powers of Commissioner and Justices
615A. Commissioner and Justices may act for Judge in certain cases - (1) Any power conferred by this Act on the Court to make an order under sections 602, 603, 604, and 608 of this Act may be exercised by a Commissioner of the High Court or any 2 Justices of the Peace if at the time when the power is exercised there is not present in Niue a judge who is able to exercise it.
(2) In any such order made by the Commissioner or 2 Justices of the Peace, a statement that, or to the effect that, to the best of his or their knowledge and belief, at the time of the making of the order there is not present in Niue a Judge who is able to make it shall be conclusive proof of the jurisdiction of the Commissioner of Justices as the case may be so far as the requirements of this section are in question.
(3) Any proceedings commenced before a Commissioner or 2 Justices of the Peace in accordance with this section may be continued and completed before a Judge.
(4) No Commissioner or Justice shall exercise any power under this section in any matter in which he has signed an application for a reception order or a medical certificate.
Persons of Unsound Mind Charged with Offences
616. Insane persons not to be tried for offences - If any person on being charged with an offence before the High Court is found to be of unsound mind so that he cannot understand the nature of the proceedings, he shall not be tried, but the High Court shall order him to be detained in prison or in some other place of security until the pleasure of [the Cabinet of Ministers] or (in the case of a charge of murder or manslaughter) the pleasure of the Governor-General is known.
Cf. 1915, No. 40, s. 590
The reference to the Cabinet of Ministers was substituted for a reference to the Resident Commissioner by s. 2(2)(c) of the Niue Amendment Act 1974.
617. Detention of accused persons acquitted on ground of insanity - If any person on his trial for an offence before the High Court is found to have been insane at the time of the commission of the offence, he shall be found not guilty on the ground of insanity, and the Court shall order him to be detained in prison or in some other place of security until the pleasure of [the Cabinet of Ministers] or (in the case of a charge of murder or manslaughter) the pleasure of the Governor-General is known.
618. Discharge - (1) Except in the case of a charge of murder or manslaughter, a person shall not be detained under such an order for a longer period one month, and than may at any time be discharged by [the Cabinet of Ministers].
(2) In the case of a charge of murder or manslaughter, any person so detained may be at any time discharged by the Governor-General.
Cf. 1915, No. 40, s. 592; 1965, No. 1, s. 3(1)
In subs. (1) the reference to the Cabinet of Ministers was substituted for a reference to the Resident Commissioner by s. 2(2)(c) of the Niue Amendment Act 1974.
619. Orders of medical custody - (l) When any person is so detained, whether in the case of a charge of murder or manslaughter or otherwise, the High Court shall have the same jurisdiction to make an order of medical custody or to issue a wan-ant for removal to New Zealand as in the case of any other person of unsound mind.
(2) Any order of medical custody so made shall supersede the order for detention during the pleasure of [the Cabinet of Ministers] or the Governor-General, save that, in the case of a charge of murder or manslaughter, no person shall be discharged from custody either in Niue or New Zealand except with the consent of the Governor-General.
Cf. 1915, No. 40, s. 593; 1965, No. 1, s. 3(1)
In subs. (2) the reference to the Cabinet of Ministers was substituted for a reference to the Resident Commissioner by s. 2(2)(c) of the Niue Amendment Act 1974.
620. The defence of insanity in criminal prosecutions - (1) No person charged with any offence shall be acquitted on the ground of insanity, unless the offence was committed by him while labouring under natural imbecility or disease of the mind to such an extent as to render him incapable of understanding the nature or quality of the act done by him or of knowing that the act was wrong.
(2) A person labouring under specific delusions but in other respects sane shall not be acquitted on the ground of insanity, unless the delusions caused him to believe in the existence of some state of things which, if it existed, would justify or excuse his act.
(3) Every one shall be presumed to be and to have been sane unless the contrary is proved.
PART XXVII
621-633 [Repealed 18/2/1975]
634-644 Repealed by s. 103 of the Niue Amendment Act (No. 2) 1968.
PART XXIX
NIUEAN ANTIQUITIES
645. Interpretation - In this Part of this Act the expression "Niuean antiquities" includes Niuean relics, articles manufactured with ancient Niuean tools and according to Niuean methods and all other articles or things of historical or scientific value or interest and relating to Niue; but does not include any botanical or mineral collections or specimens.
Cf. 1950, No. 92, s. 2
646. Minister may acquire Niuean antiquities - [The Cabinet of Ministers] may acquire on behalf of Her Majesty for the benefit of the people of Niue such Niuean antiquities as [the [[Cabinet of Ministers]] considers] expedient, and may provide for their safe custody.
Cf. 1950, No. 92, s. 3; 1965, No. 1, s. 3(2)
The references to the Cabinet of Ministers were substituted for references to the Executive Committee (as substituted by s. 26 (a) and (b) of the Niue Amendment Act 1971) by s. 2(2)(a) of the Niue Amendment Act 1974.
The words in the second set of single square brackets (as now amended by s. 2(2)(a) of the Niue Amendment Act 1974) were substituted for the words "he considers" by s. 26(b) of the Niue Amendment Act 1971.
647. Niuean antiquities to be offered for sale before exportation - It shall not be lawful to remove from Niue any Niuean antiquities without first offering them for sale to [the Cabinet of Ministers] on behalf of Her Majesty for the benefit of the people of Niue.
Cf. 1950, No. 92, s. 4; 1965, No. 1, s. 3(2)
The reference to the Cabinet of Ministers was substituted for a reference to the "Executive Committee" (as substituted by s. 26(c) of the Niue Amendment Act 1971) by s. 2(2)(a) of the Niue Amendment Act 1974.
648. Power to detain Niuean antiquities attempted to be exported - It shall be the duty of all constables and officers of Customs to seize and detain any Niuean antiquities attempted to be removed from Niue contrary to the provisions of this Part of this Act.
Cf. 1950, No. 92, s. 5; 1965, No. 1, s. 3(2)
649. Exporting Niuean antiquities without permission - (1) Every person who, without the express permission in writing of [the Cabinet of Ministers], exports from Niue any Niuean antiquities is liable to a fine not exceeding [$200].
(2) Notice of the intention to export any Niuean antiquities shall be given by the exporter to the Collector or other proper officer of Customs at least 24 hours before shipment.
(3) Any Niuean antiquities entered for export contrary to this Part of this Act shall be deemed to be forfeited, and shall vest in Her Majesty for the benefit of the people of Niue:
Provided that [the Cabinet of Ministers] may, after inquiry, cancel the forfeiture if [ the [[ Cabinet of Ministers]] thinks] fit.
Cf. 1950, No. 92, s. 6; 1965, No. 1, s. 3(2)
In subs. (1), and in the provision to subs.(3) the references to cabinet of Ministers were substituted in each case references to the "Executive Committee” (as substituted by s. 26(d) of the Niue Amendment Act 1971) by s. 2(2)(a) of the Niue Amendment Act 1974.
In subs. (3), in the proviso, the words in the second act of single square brackets (as now amended by s. 2(2)(a) of the Niue Amendment Act 1974) were substituted for the words "he thinks" by s. 26(e) of the Niue Amendment Act 1971.
650. Power to remove antiquities in certain cases - Nothing in this Part of this Act shall be deemed to prevent any person who has offered any Niuean antiquities for sale as provided by section 647 of this Act from removing those Niuean antiquities from Niue, if he has previously obtained the permission in writing of [the Cabinet of Ministers].
Cf. 1950, No. 92, s. 7; 1965, No. 1, s. 3(2)
The reference to the Cabinet of Ministers was substituted for a reference to the "Executive Committee" (as substituted by s. 26(f) of the Niue Amendment Act 1971) by s. 2(2)(a) of the Niue Amendment Act 1974.
651. Right to copy of antiquities intended to be exported - (1) On any application for permission to export any Niuean antiquities, [the [[Cabinet of Ministers]] may, if it thinks fit, make it a condition of the granting of the application that the owner thereof allows them to be copied, by photography, cast, or otherwise, in such manner and by such person as [the [[Cabinet of Ministers]] directs].
(2) Every such copy shall be the property of Her Majesty for the benefit of the people of Niue.
Cf. 1950, No. 92, s. 8; 1965, No. 1, s. 3(2)
The words in the first set of single brackets were substituted for the words "the Minister may, if he think fit" by s. 26(g) of the Niue Amendment Act 1971.
The words in the second set of single square brackets were substituted for the words "the Minister directs" by s. 26(h) of the Niue Amendment Act 1971.
The references to the Cabinet of Ministers were substituted for references to the Executive Committee (as substituted by s. 26(g) and (h) of the Niue Amendment Act 1971) by s. 2(2)(a) of the Niue Amendment Act 1974
652. Cabinet of Ministers to decide what articles come under this Part - In case any dispute arises as to whether any article or thing comes within the scope of this Part of this Act, that dispute shall be determined by [[the Cabinet of Ministers]] whose decision thereon shall be final.
Cf. 1950, No. 92, s. 9; 1965, No. 1, s. 3(2)
The reference to the Cabinet of Ministers was substituted for a reference to the "Executive Committee" (as substituted by s. 26(1) of the Niue Amendment Act 1971) by s. 2(2)(a) of the Niue Amendment Act 1974.
653. Repealed by s. 26(j) of the Niue Amendment Act 1971.
PART XXX
CUSTOMS
This part came into force on 1 January 1970. See the Niue Act Commencement Order 1969 (S.R. 1969/232).
654. Customs Act 1966 in force in Niue - (l) Subject to the provisions of this Part of this Act, the Customs Act 1966 shall be in force in Niue.
(2) The application of that Act to Niue shall be subject to the following provisions:
(a) All references to New Zealand shall, except where a contrary intention appears, be read and construed as being references to Niue, and New Zealand shall be deemed to be a country outside Niue;
(b) All references to the Tariff shall be read and construed as references to the Tariff as modified or substituted in relation to Niue by an Order in Council made under section 655 of this Act;
(c) All references to the Minister of Customs shall be read and construed as references to [the Minister of Foreign Affairs];
[(d) All references to the Comptroller of Customs or to Collectors of Customs or to Customs Officers shall be read and construed as references to persons holding corresponding positions in the Niue Public service.]
Cf. 1913, No. 63, s. 297
In subs. (2) (c) the reference to the Minister of Foreign Affairs was substituted for a reference to the Minister of Island Affairs (as substituted by s. 8(2) of the Maori and Island Affairs Department Act 1968) by s. 2(4)(a) of the Niue Amendment Act (No. 2) 1974.
In subs. (2), para. (d) was added by s. 28 of the Niue Amendment Act 1971.
For the appointment of the Hanan Aerodrome as a Customs Airport in Niue, see Gazette 1971, p. 1351.
655A. Power to modify Tariff or substitute new Tariff - (1) Notwithstanding anything the Customs Act 1966 the Niue Assembly may from time to time modify the Tariff in its application to goods imported into Niue or substitute a new Tariff applying to such goods.
(2) The Assembly may by Act delegate the exercise of the powers vested in it by this Act to Cabinet provided that any modification of the Tariff or substitution of a new Tariff be made by regulation and that any such regulation shall be laid before the Assembly pursuant to the Regulation Ordinance 1967.
[Added 3/76/1982]
656. Goods may be imported from New Zealand or Cook Islands free of duty - (1) All goods imported into Niue from New Zealand or the Cook Islands, whether the produce or manufacture of New Zealand or the Cook Islands or not, shall be admitted into Niue free of duty.
(2) Nothing in this section shall apply to-
(a) Goods in respect of which on their exportation from New Zealand or the Cook Islands any claim for drawback of duty has been made and allowed;
(b) Goods which by reason of warehousing or for any other reason have been exported from New Zealand or the Cook Islands without payment of duty on their importation into New Zealand or the Cook Islands;
(c) Goods produced in a manufacturing warehouse in New Zealand or the Cook Islands, unless they have been entered in New Zealand or the Cook Islands for home consumption and the duty (if any) paid thereon;
(d) Goods subject to any excise duty in New Zealand under the Customs Acts (as defined in section 3 of the Customs Act 1966) or in the Cook Islands under the law in force in the Cook Islands, unless such duty has been paid thereon as if they had not been exported;
(e) Goods on which a rate of duty has been paid in New Zealand or the Cook Islands lower than that to which the goods are subject in Niue at the time of their importation into Niue.
657. [Repealed 4/76/1982]
658. Actions and prosecutions in relation to Niue - (1) All actions and other proceedings, whether civil or criminal, under the Customs Act 1966 in relation to goods imported into Niue or in relation to any offence committed or cause of action arising in Niue may be instituted and taken either-
(a) In New Zealand, in the same manner as if Niue formed part of New Zealand for the purposes of the Customs Act 1966; or
(b) Subject to any restrictions imposed by [Act], in the High Court of Niue, and that Court shall have jurisdiction accordingly.
(2) For the purpose of any such proceedings in the High Court, all references in the Customs Act 1966 to the Supreme Court shall be read as references to the High Court.
(3) Repealed by s. 2(1) of the Niue Amendment Act 1974.
Cf. 1913, No. 63, s. 308
In subs (1)(b) the word "Act" was substituted for the words "regulations under this Act" by s. 2(1) of the Niue Amendment Act 1974.
PART XXXI
THE NIUE PUBLIC SERVICE
[See also Part VI of the Constitution of Niue as the principal law]
As to the appointment of the Registrar, Deputy Registrar, and administrative officers of the Land Court, see ss. 38 and 39 of the Niue Amendment Act (No. 2) 1968.
As to the appointment of the Director of Education, see reg. 3(2) of the Niue Education Regulations 1968 (S.R. 1968/24).
659. Interpretation - In this Part of this Act, unless the context otherwise requires,-
"Employee" means a person employed in the Niue Public Service;
"New Zealand controlling authority" means, in respect of a person employed in any branch of the New Zealand Government Service to which the State Services Act 1962 applies, the Commission, and, in respect of a person employed in any other branch of the New Zealand Government Service, the Minister in charge of that branch;
"'New Zealand Government Service" means the service of Her Majesty in respect of the Government of New Zealand not being honorary service; and includes service which is education service within the meaning of [the Government Superannuation Fund Act 1956].
Cf. 1957, No. 103, s. 76; 1965, No. 1, s. 3(1)
"New Zealand Government Service": The reference to the Government Superannuation Fund Act 1956 was substituted for a reference to the former Superannuation Act 1956 by s. 3(3) of the Government Superannuation Fund Amendment Act 1976.
"Niue Public Service": A definition of this term was repealed by s. 2(1) of the Niue Amendment Act 1974.
660. Appointments of employees - (l) Subject to the provisions of this Act, the Commission may appoint to the Niue Public Service such employees as it considers necessary.
(2) Notwithstanding anything to the contrary in any other Act, all employees of the Niue Public Service shall be appointed by the Commission, and, subject to the provisions of any regulations made under section 665 of this Act, shall hold office subject to such conditions as may from time to time be prescribed or determined by the Commission.
(3) In case of the absence from duty of any employee (from whatever cause arising) or on the occurrence from any cause of a vacancy in any position in the Niue Public Service (whether by reason of death, resignation, or otherwise), and from time to time while the absence or vacancy continues, all or any of the powers and duties of the employee or pertaining to the position may be exercised and performed by any other employee for the time being directed by the Commission to exercise and perform them, whether the direction has been given before the absence or vacancy occurs or while it continues.
(4) No such direction and no acts done by any employee acting pursuant to any such direction shall in any proceedings be questioned on the ground that the occasion for the direction had not arisen or had ceased, or on the ground that the employee had not been appointed to any position to which the direction relates.
Cf. 1957, No. 103, s. 77; 1965, No. 1, s. 3(2)
661. Exemptions - (1) [The Cabinet, on the recommendation of the Commission, may, by notice in the Niue Gazette,] declare that any specified position or class of position in the Niue Public Service shall cease to be a position in that Service, and thereupon any person then holding that position or any position in that class shall cease to be an employee of the Niue Public Service, and shall thereafter hold his appointment during the pleasure of [the Cabinet] and upon such terms and conditions as [the Cabinet] directs from time to time.
(2) If any position to which a declaration under subsection (1) of this section refers is vacant at the time the declaration comes into force or thereafter becomes vacant, any appointment thereto shall be made by [the Cabinet], and shall continue during [the pleasure of the Cabinets and upon such terms and conditions as [the Cabinet] directs from time to time.
(3) [The Cabinet on the recommendation of the Commission, may, by notice in the Niue Gazette,] revoke any declaration made under this section in whole or in part and thereupon the person then holding an position in respect of which the declaration was so revoked any position if his appointment is confirmed by the Commission, be deemed to have been duly appointed thereto by the Commission and shall hold office as an employee of the Niue Public Service.
Cf. 1957, No. 103, s. 78; 1965, No. 1, s. 3(2)
In subs. (1) the words in the first act of square brackets were substituted for the words "The Governor-General in Council, on the recommendation of the Commission, may" by s. 2 of the Niue Amendment Act 1974.
In subss. (1) and (2) the words "the Cabinet" wherever they occur were substituted "the Minister" by s. 2(1) of the Niue Amendment Act 1974.
In subs. (2) the words "the pleasure of the Cabinet" were substituted for the words "his pleasure" by s. 2(1) of the Niue Amendment Act 1974.
In subs. (3) words in square brackets were substituted for the words "The Governor-General in Council, on the recommendation of the Minister may" by s. 2(1) of the Niue Amendment Act 1974.
662. State Services Act 1962* not applicable - Except as provided in this Part of this Act, the State Services Act 1962* shall have no application to the Niue Public Service or to employees of the New Zealand Public Service in their capacity as employees of the Niue Public Service.
*See now State Sector Act 1988 (NZ)
663, 664. Repealed by s. 2(1) of the Niue Amendment Act 1974.
665. Public Service Regulations - (1) The Commission may, with the approval of the [Cabinet], make regulations as to the pay, allowances, discipline, control, and management of the Niue Public Service. Any such regulations may be made either generally or with respect to any particular case or class of cases.
(2) Without limiting the generality of the powers conferred by subsection (1) of this section, the Commission may under that subsection make regulations relating to the appointment, promotion, transfer, retirement, removal, suspension, and dismissal of employees of the Niue Public Service, including the review of or appeals against any decisions in relation thereto.
(3) Without limiting any other powers of the Commission, the Commission may affix to breaches of any regulations under this section or prescribe for offences against discipline a fine not exceeding [$20] according to the nature and gravity of the offence; and those fines shall be recoverable by deduction from salary or otherwise.
(4) Any regulation made under this section shall come into force on a date to be specified therein in that behalf (whether before or after the date on which it is made), and if no such date is specified shall come into force on the date of the publication in the [Niue Gazette] of a notification of the making of the regulation:
Provided that no provision of any regulation imposing any liability or disability shall come into operation before the date on which the regulation is made.
(5) No regulation made under this section shall be held to be invalid on the ground that it confers any discretionary authority on the Commission or on any person, or that it authorises the Commission or any person to determine the conditions on which leave of absence may be approved or allowances paid or any conditions of service not inconsistent with this Act, or that it leaves any matter to be determined, applied, dispensed with, prohibited, or regulated by the Commission or by any person from time to time by instruction, either generally or for any classes of case or in any particular case.
Cf. 1957, No. 103, s. 82; 1965, No. 1, s. 3(2)
In subs. (1) the word "Cabinet" was substituted for the word "Governor-General" and in subs. (4) the words "Niue Gazette" were substituted for the words "New Zealand Gazette", by s. 2(1) of the Niue Amendment Act 1974.
666. Payment of salary and allowances - (1) Subject to the provisions of any regulations made under section 665 of this Act, employees of the Niue Public Service shall receive such pay and allowances as the Commission thinks fit.
(2) The pay and allowances of employees of the Niue Public Service shall be paid from [the Niue Government Account] out of money appropriated by [the Niue Assembly].
Cf. 1957, No. 103, s. 83; 1965, No. 1, s. 3(2)
In subs. (2) the reference to the Niue Government Account was substituted for a reference to the Niue Assembly Account by s. 2(2)(f) of the Niue Amendment Act 1974, and the reference to the Niue Assembly was substituted for a reference to the Island Assembly by s. 2(2)(d) of that Act.
667. Bonds and deeds of covenant by employees or prospective employees - (1) An employee or prospective employee to whom money is advanced or on whose behalf expenditure is incurred with the approval of the Commission in connection with transportation, education, training, or sustenance, or for any other special purpose, may be required, as a condition of that advance or expenditure, to sign a bond in a form to be determined by the Commission requiring him to pay to the Crown the sum therein specified if he makes default in the performance of any condition of the bond.
(2) The Commission, instead of requiring a bond as aforesaid, may require the employee or prospective employee to sign a deed of covenant whereby he covenants to repay to the Crown all money so advanced to him or expenditure so incurred on his behalf, up to a maximum amount specified in the deed of covenant, if he fails to render service in accordance with the provisions of the deed of covenant.
(3) The amount of any such bond or, as the case may be, the maximum amount payable under any such deed of covenant shall be reduced during the currency thereof by an amount equivalent to the proportion that the service rendered by the employee or prospective employee in accordance with the condition of the bond or the provisions of the deed of covenant bears to the full period of service required for the discharge of the bond or deed of covenant.
(4) The Commission may require that such a bond or deed of covenant shall also be signed by a parent or guardian, or by some other person approved by the Commission, as surety, or the Commission may accept any other security offered by the employee or prospective employee. The parent or guardian or person who signs such a bond or deed of covenant shall be jointly and severally liable thereunder.
(5) Every such bond or deed of covenant shall be enforceable against the employee or prospective employee and the surety who signs it, notwithstanding anything in any enactment or rule of law; and the amount of the bond or, as the case may be, the amount payable under the deed of covenant, subject to deduction pursuant to subsection (3) of this section, shall be recoverable as liquidated damages.
Cf. 1957, No. 103, s. 83A; 1962, No. 40, s. 17; 1965, No. 1, s. 3(2)
668. Concurrent offices - An employee of the Niue Public Service may hold concurrently any offices, whether judicial or administrative, to which he may be appointed.
Cf. 1957, No. 103, s. 84
669. Employment in New Zealand Government Service and Niue Public Service - (1) Any person permanently employed in the New Zealand Government Service may, with the consent of the New Zealand controlling authority, be appointed to any position in the Niue Public Service in all respects as if he were an employee thereof; but, until he is appointed to a position in the Niue Public Service, no such person shall have any right of appeal against any determination of the Commission in relation to any appointment, promotion, or transfer in or to the Niue Public Service.
(2) Any person permanently employed in the Niue Public Service may be appointed to any position in the New Zealand Government Service in all respects as if he were permanently employed therein; but, until he is appointed to a position in the New Zealand Government Service, no such person shall have any right of appeal against any determination of the New Zealand controlling authority in relation to any appointment, promotion, or transfer in the New Zealand Government Service.
(3) Any person appointed to a position in the Niue Public Service under subsection (1) of this section or to a position in the New Zealand Government Service under subsection (2) of this section may hold positions concurrently in both services, and in such a case-
(a) His status, rights, and liabilities in each service shall be unaffected by the fact that he holds a position in the other service; and
(b) In respect of each position he shall be subject to the laws governing the service to which that position belongs, irrespective of his tenure of a position in the other service; and
(c) He shall in respect of each service be qualified for promotion, increase of salary, and appointment to any other position as if he held no position in the other service.
(4) So long as any person so holds positions concurrently in both services, he shall be deemed to be absent on leave without pay from the New Zealand Government Service or, as the case may be, from the Niue Public Service, unless the New Zealand controlling authority or, as the case may be, the Commission otherwise directs.
(5) When an employee of the New Zealand Government Service is appointed to a position in the Niue Public Service, and then or thereafter ceases to hold a position in the New Zealand Government Service, he shall not be deemed for that reason to have retired from the New Zealand Government Service, but shall become a supernumerary employee of that service, and unless he sooner resigns from the New Zealand Government Service, shall so remain until he ceases to be employed in the Niue Public Service and for such further period, not exceeding 6 months, as the New Zealand controlling authority may from time to time in any case allow.
(6) When an employee of the Niue Public Service is appointed to a position in the New Zealand Government Service, and then or thereafter ceases to hold a position in the Niue Public Service, he shall not be deemed for that reason to have retired from the Niue Public Service, but shall become a supernumerary employee of that service, and, unless he sooner resigns from the Niue Public Service, shall so remain until he ceases to be employed in the New Zealand Government Service and for such further period, not exceeding 6 months, as the Commission may from time to time in any case allow.
(7) A supernumerary employee shall receive no pay in respect of the service of which he is a supernumerary employee, but shall for all other purposes be deemed to remain an employee of that service.
(8) Any employee of the Niue Public Service may, with the consent of the New Zealand controlling authority, be attached to the New Zealand Government Service for training or experience, and during the period of his service in New Zealand that employee shall be paid such salary and allowances as may be determined by the New Zealand controlling authority.
Cf. 1957, No. 103, s. 85; 1962, No. 40, s. 18; 1965, No. 1, s. 3(2)
670. Contribution to Government Superannuation Fund by employees of the Niue Public Service - (1) The provisions of subsections (2) and (3) of section 50 of [the Government Superannuation Fund Act 1956] shall not apply to any permanent employee of the Niue Public Service who was not ordinarily resident in Niue immediately before his appointment to the Niue Public Service, or, in the case of an appointment made before the commencement of this Act, to the Cook Islands Public Service, unless at any time, by notice in writing to the Superintendent of the Government Superannuation Fund, he elects to become a contributor to that Fund; and, if he so elects,-
(a) He shall be a contributor to that Fund from the dates specified in subsection (2) or subsection (3), as the case may be, of the said section 50, or from such date as he may elect pursuant to the provisions of section 22 of [the Government Superannuation Fund Act 1956]; and
(b) He shall have the right, pursuant to section 28 of that Act, to cease to be a contributor.
(2) While any employee to whom subsection (1) of section 669 of this Act applies holds positions concurrently in both services, or is a supernumerary employee of the New Zealand Government Service in accordance with the provisions of subsection (5) of that section, and is a contributor to the Government Superannuation Fund, the salary together with increments, if any, that in the opinion of the New Zealand controlling authority he would have been entitled to receive in respect of his employment in the New Zealand Government Service had he not been appointed to the Niue Public Service shall be deemed to be his salary for the purposes of [the Government Superannuation Fund Act:
Provided that, when any such employee has held a position in the Niue Public Service for a continuous period of 6 years, he may, at any time after the expiration of that period while he still holds a position in that service, or, if he is transferred to or returns to employment in the New Zealand Government Service, within one year after the termination of service in Niue, elect to contribute on the salary received by him in respect of his employment in the Niue Public Service (exclusive of any special allowance received by him in respect of his residence in Niue) with effect from the date of his appointment in the last-mentioned service.
(3) For the purposes of the proviso to subsection (2) of this section, an appointment to a position in the Cook Islands Public Service in relation to the Government of Niue made before the commencement of this Act shall be deemed to be an appointment to the Niue Public Service, and service in that position before the commencement of this Act shall be deemed to be service in a position in the Niue Public Service.
(4) While any person to. whom subsection (2) of section 669 of this Act applies holds positions concurrently in both services or is a supernumerary employee of the Niue Public Service under subsection (6) of that section, or is attached to the New Zealand Government Service under subsection (8) of that section, the salary together with increments, if any, that in the opinion of the Commission he would have been entitled to receive in respect of his employment in the Niue Public Service had he not been appointed to a position in or been attached to the New Zealand Government Service shall be deemed to be his salary for the purposes of [the Government Superannuation Fund Act 1956]:
Provided that, when any such employee has held a position in the New Zealand Government Service for a continuous period of 6 years, he may, at any time after the expiration of that period while he still holds a position in that service, or, if he is transferred to or returns to employment in the Niue Public Service, within one year after the termination of service in New Zealand, elect to contribute on the salary received by him in respect of his employment in the New Zealand Government Service with effect from the date of his appointment in the last-mentioned service.
(5) Upon any such election, there shall be payable by the employee to the Fund, within such time and in such manner as the Government Superannuation Board determines, such sum as the Board fixes in respect of the excess of his salary during the past period as an employee of the Cook Islands Public Service or of the Niue Public Service or of the New Zealand Government Service, as the case may be, over the amount deemed to be his salary during that period under the foregoing provisions of this subsection.
(6) In this section the term "employee" includes-
(a) A Judge of the High Court;
(b) A Judge of the Land Court;
(c) The holder of any position specified in a declaration made pursuant to section 661 of this Act;
(d) The holder of any position specified in a notice given in relation to the Government of Niue pursuant to paragraph (e) of subsection (9) of section 50 of [the Government Superannuation Fund Act 1956] (as enacted by section 2 of [the Government Superannuation Fund Amendment Act 1958]).
Cf. 1957, No. 103, s. 85A; 1962, No. 40, s. 19(1); 1965, No. 1, s. 3(2)
In subss. (1), (2), (4). and (6) (d) the references to the Government Superanuation an Fund Act 1956 and the Government Superannuation Fund Amendment Act 1958 were substituted for references to the former Superannuation Act 1956 and Superannuation Amendment Act 1958 by s. 3(3) of the Government Superannuation Fund Amendment Act 1976.
671. Repealed by s. 17 of the Tokelau Amendment Act 1967.
PART XXXII
THE LAWS OF NIUE: GENERAL PROVISIONS
Application of the Laws of New Zealand
672. Law of England as in the year 1840 to be in force in Niue - The law of England as existing on the 14th day of January in the year 1840 (being the year in which the Colony of New Zealand was established) shall be in force in Niue, save so far as inconsistent with this Act or inapplicable to the circumstances of Niue:
Provided that no Act of the Parliament of England or of Great Britain or of the United Kingdom passed before the said 14th day of January in the year 1840 shall be in force in Niue, unless and except so far as it is in force in Niue at the commencement of this Act.
Cf. 1915, No. 40, s. 615
673. Jurisdiction of the High Court - For the purposes of section 672 of this Act, all rules of common law or equity relating to the jurisdiction of the superior Courts of common law and of equity in England shall be construed as relating to the jurisdiction of the High Court of Niue.
Cf. 1915, No. 40, s. 616
674. Common law and equity to be administered concurrently - All Courts in Niue. shall within the limits of their jurisdiction administer common law and equity concurrently, and in all cases in which there is any conflict between common law and equity with reference to the same matter the rules of equity shall prevail.
Cf. 1915, No. 40, s. 617
675. Statute law of New Zealand not applicable to Niue - Save so far as otherwise expressly provided, the statute law of New Zealand, whether enacted before or after the commencement of this Act, shall not be in force in Niue.
Cf. 1915, No. 40, s. 618
The following enactments are declared to be in force in Niue:
The Republic of Zambia Act 1965; see s. 3(1)(a) of that Act.
The Republic of Kenya Act 1965; see s. 3(1)(a) of that Act.
The Republic of Tanzania Act 1966; see s. 5(1)(a) of that Act.
The Republic of Singapore Act 1966; see s. 3(1)(a) of that Act.
The Republic of Malawi Act 1966; see s. 3(1)(a) of that Act.
The Carriage by Air Act 1967; see s. 3(2) of that Act
The Lesotho Act 1967; see s. 3(1)(a) of that Act.
The Republic of Botswana Act 1967; see s. 3(1)(a) of that Act.
The Diplomatic Privileges and Immunities Act 1968; see s. 25(1) and (2) of that Act
The Swaziland Act 1968; see s. 3(1)(a) of that Act.
The Republic of Nauru Act 1969; see s. 3(1)(a) of that Act.
The Republic of Guyana Act 1970; see s. 3(1)(a) of that Act.
The Republic of the Gambia Act 1970; see s. 3(1)(a) of that Act.
The Tonga Act 1970; see s. 3(1)(a) of that Act.
The Consular Privileges and Immunities Act 1971; see s. 12(1) and (2) of that Act.
The Republic of Sierra Leone Act 1971; see s. 3(1)(a) of that Act
The Republic of Bangladesh Act 1972; see s. 5(1)(a) of that Act.
The Republic of Sri Lanka Act 1972; se s. 3(1)(a) of that Act
The Royal Titles Act 1974; see s. 3(1) of that Act.
In the following enactments reference is made to their application to Niue:
The Official Secrets Act 1951; see s. 17(6) of that Act
The Geneva Conventions Act 1958; see s. 10(3)(b) of that Act.
For the purpose of determining whether my service is an international air service, Niue shall be deemed to be a separate country; see s. 24A of the International Air Services Licensing Act 1947 (as inserted by s. 7 of the International Air Services Licensing Amendment Act 1965).
As to the enforcement of overseas maintenance orders in New Zealand under the Domestic Proceedings Act 1968, Niue is to be a Commonwealth country not forming part of New Zealand; see s. 61(2) of that Act.
676. When enactment in force in Niue, amendments and regulations to be in force also - (1) [Subject to Article 36 of the Constitution,] when any enactment of the Parliament of New Zealand is in force in Niue, every existing or future amendment of that enactment, and all existing or future regulations, rules, Orders in Council, and other acts of authority in force under any such enactment [and every enactment passed in substitution for any such enactment,] shall, as far as applicable and with all necessary modifications, be or become also in force therein, except where otherwise expressly provided.
(2) Notwithstanding anything in this section, [but subject to Article 36 of the Constitution,] rules of Court in force in New Zealand under any enactment which is in force in Niue shall not themselves be in force in Niue, unless it is expressly so provided.
Cf. 1915, No. 40, s. 619; 1957, No. 103, s. 93(1); 1965, No. 1, s. 3(1)
In subs. (1) the words in the first set of square brackets were inserted by s. 2(1) of the Niue Amendment Act 1974, and the words in the second set of square brackets were inserted by s. 12 of the Niue Amendment Act 1970.
In subs. (2) the words in square brackets were inserted by s. 2(1) of the Niue Amendment Act 1974.
677. Other enactments in force in Niue to be read subject to this Act - Except where otherwise expressly provided, every enactment of the Parliament of New Zealand which by virtue of this Act or any [other enactment] is in force in Niue, and all regulations, rules, Orders in Council, and other acts of authority under that enactment that are in force in Niue, shall in their application to Niue be read subject to the provisions of this Act, and subject also to all modifications necessary for such application.
Cf. 1915, No. 40, s. 620; 1957, No. 103, s. 93(2)
The words "other enactment'' were substituted for the words "other Act" by s. 13 of the Niue Amendment Act 1970.
678. Criminal procedure in Niue - In every enactment in force in Niue, every reference to the trial of offences by way of indictment or by way of summary proceedings shall, in the application of that enactment to Niue, be construed as a reference to the trial of such offences by the High Court in the ordinary course of its criminal jurisdiction and procedure.
679. Acts Interpretation Act in force in Niue - (1) The Acts Interpretation Act 1924 shall be in force in Niue.
(2) Notwithstanding anything to the contrary in the Acts Interpretation Act 1924, the term "New Zealand' as used in any Act, whether now in force in New Zealand or hereafter to be passed, shall not include Niue, except where a contrary intention appears.
(3) The Acts Interpretation Act 1924 shall, so far as applicable and subject to this Act, apply to all Ordinances in the same manner as to Acts of Parliament.
Cf. 1915, No. 40, s. 622; 1965, No. 1, s. 3(1)
In subs. (3), as to the word "Ordinances", see s. 2(2)(e) of the Niue Amendment Act 1974.
680. Administration Act in force in Niue - (1) [The Administration Act 1969] shall, subject to this Act, be in force in Niue, with the following modifications.
(2) Every reference in that Act to New Zealand shall be read as a reference to Niue, and every reference therein to the Supreme Court shall be read as a reference to the High Court.
(3) The provisions of the said Act as to the Public Trustee shall not be in force in Niue.
(4) All rules of practice and procedure which by the said Act may be made in accordance with the judicature Act 1908 may be made in the same manner as other rules of the practice and procedure of the High Court.
Cf. 1915 No. 40, s. 623
In subs. (1) the Administration Act 1969, being the corresponding enactment in force at the date of this reprint, has been substituted for the repealed Administration Act 1952.
681. Arbitration Act in force in Niue - (1) The Arbitration Act 1908 shall be in force in Niue, with the following modifications.
(2) Every reference in that Act to the Supreme Court shall be read as a reference to the High Court, and every reference to New Zealand shall be read as a reference to Niue.
(3) Rules for the purpose of giving effect to that Act in the High Court may be made in the same manner as other rules regulating the practice and procedure of that Court.
Cf. 1915, No. 40, s. 624
682. Bills of Exchange Act in force in Niue - (1) The Bills of Exchange Act 1908 shall be in force in Niue.
(2) In the application of that Act to Niue any reference to New Zealand shall be read as a reference to Niue.
Cf. 1915, No. 40, s. 625
683. Carriers Act in force in Niue - (1) The Carriers Act 1948, except subsection (2) of section 3, shall be in force in Niue.
(2) In that Act the term "New Zealand" shall be read as including Niue:
Provided that nothing in that Act shall apply with respect to any contract for the carriage of any person or any goods between New Zealand and Niue.
[683A. Charitable Trusts Act in force in Niue- (1) The Charitable Trusts Act 1957 shall be in force in Niue.
(2) In that Act the term "New Zealand" shall, both in New Zealand and in Niue, be read as including Niue.]
This section was inserted by s. 5 of the Niue Amendment Act 1968.
684. Chattels Transfer Act in force in Niue - (1) The Chattels Transfer Act 1924 shall be in force in Niue, with the following modifications.
(2) In the application of that Act to, Niue, every reference to the Supreme Court shall be read as a reference to the High Court, and every reference to a justice of the Peace shall be read as a reference to a judge of the High Court.
684A Citizenship Act in force in Niue-The Citizenship Act 1977 shall extend to and be in force in Niue.
[Amended 29/67/1977 (NZ)]
[685. This section was repealed by s. 12(3) of the Price Control on Imported Goods for Resale in Niue Act 1975 of the Niue Assembly.]
686. Copyright Act in force in Niue - (1) The Copyright Act 1962 shall be in force in Niue in the same manner in all respects as if Niue were for all purposes part of New Zealand, and the term "New Zealand" as used in that Act shall, both in New Zealand and in Niue, be read as including Niue accordingly.
(2) The High Court shall have no jurisdiction in civil proceedings under that Act.
Cf. 1915, No. 40, s. 627
687. Deaths by Accidents Compensation Act in force in Niue - (1) The Deaths by Accidents Compensation Act 1952 shall be in force in Niue.
(2) All proceedings in Niue under that Act shall be taken and prosecuted in the High Court in the ordinary course of its civil jurisdiction.
Cf. 1915, No. 40, s. 628
See the Accident Compensation Act 1975, reprinted 1975, Vol. 2.
688. Demise of the Crown Act in force in Niue - (1) The Demise of the Crown Act 1908 shall be in force in Niue.
(2) The term "New Zealand" as used in that Act shall, both in New Zealand and in Niue, be read as including Niue.
Cf. 1915, No. 40, s. 629
689. Designs Act in force in Niue - (1) The Deigns Act 1953 shall be in force in Niue in the same manner in all respects as if Niue were for all purposes part of New Zealand, and the term "New Zealand" as used in that Act shall, both in New Zealand and in Niue, be read as including Niue accordingly.
(2) The High Court shall have no jurisdiction in civil proceedings under that Act.
(3) All designs registered in New Zealand at the commencement of this Act shall have the same protection in Niue as in New Zealand.
Cf. 1915, No. 40, s. 635; 1965, No. 1, s. 3(1)
[689A. Misuse of Drugs Act in force in Niue - (1) Subject to subsection (2) of this section and to the provisions of this Act, the Misuse of Drugs Act 1975 (so far as it is applicable) shall extend to and be in force in Niue.
(2) In the application of the Misuse of Drugs Act 1975 to Niue, unless the context otherwise requires,-
(a) Every reference in that Act to New Zealand shall be read as a reference to Niue;]
(b) Every reference in section 35 of that Act to an extradition treaty for the time being in force between New Zealand and any foreign country which is a party to the Single Convention on Narcotic Drugs 1961, as amended by the Protocol amending that Convention done at Geneva on 25 March 1972, or to the Convention on Psychotropic Substances 1971, shall be read as a reference to an extradition treaty for the time being in force between New Zealand and any such foreign country which extends to Niue;
(c) Every reference in that Act to the Court, or to a judge, or to a Magistrate or Justice, shall be read as a reference to the High Court of Niue or a Judge of that Court or a Commissioner of that Court;
(d) Every reference in that Act to the Minister of Health shall be read as a reference to the Minister in charge of Health in Niue acting with the concurrence of the Chief Medical Officer of Niue;
(e) Every reference in that Act to the Medical Officer of Health shall be read as a reference to the Chief Medical Officer of Niue;
(f) Every reference in that Act to a constable or a member of the Police shall be read as a reference to an officer of police of the Niue Public Service;
(g) The references in section 6 of that Act to subsection (2) of section 44 of the Criminal Justice Act 1954 shall be read as references to section 240 of the Niue Act 1966;
(h) The references in section 18 of that Act to section 198 of the Summary Proceedings Act 1957 shall be read as references to section 284 of the Niue Act 1966;
(i) The references in section 39 to the repeal of the Narcotics Act 1965 and the Narcotics Amendment Act 1970 shall be read as a reference to the repeal in Niue of the Narcotics Act 1965 and the Narcotics Amendment Act 1970.]
This section was inserted by s. 41 of the Misuse of Drugs Act 1975. See s. 1(2) of that Act and S.R. 1977/36.
In paras. (d) and (e), as to the reference to the Chief Medical Officer of Niue, see s. 18(4) of the Niue Amendment Act 1971 which states that all references to the Chief Medical Officer shall thereafter be read as references to the Director of Health.
690. Incorporated Societies Act in force in Niue - (l) The Incorporated Societies Act 1908 shall be in force
in Niue.
(2) In that Act the term "New Zealand" shall, both in New Zealand and in Niue, be read as including Niue.
Cf. 1952, No. 32, s. 5
691. Industrial and Provident Societies Act in force in Niue - (1) The Industrial and Provident Societies Act 1908 shall be in force in Niue.
(2) In the application of that Act to Niue, every reference to a Magistrate's Court shall be read as a reference to the High Court.
Cf. 1948, No. 78, s. 57(2)
692. Parts of Infants Act in force in Niue - (1) Part I and Part II of the Infants Act 1908* (relating to the guardianship, custody, contracts, and wills of infants) shall be in force in Niue.
*See now Guardianship Act 1968 (NZ) and Minors' Contracts Act 1969 (NZ).
(2) Every reference in that Act to the Supreme Court shall, in its application to Niue, be read as a reference to the High Court.
Cf. 1915, No. 40, s. 630
Part I of the Infants Act 1908 was repealed by s. 35(1), of the Guardianship Act 1968, and Part II of the Infants Act 1908 was repealed by s. 19(1) Minors' Contracts Act 1969.
693. Marine Insurance Act in force in Niue - The Marine Insurance Act 1908 shall be in force in Niue.
Cf. 1915, No. 40, s. 631
694. Mercantile Law Act in force in Niue - (l) The Mercantile Law Act 1908 shall be in force in Niue.
(2) Both in the application of that Act to Niue and in its application to New Zealand the term "New Zealand" as used in that Act shall be deemed to include Niue as being part of New Zealand.
Cf. 1915, No. 40, s. 632
695. Merchandise Marks Act in force in Niue - (1) The Merchandise Marks Act 1954 shall be in force in Niue in all respects as if Niue were for all purposes part of New Zealand, and the term "New Zealand" as used in that Act shall, both in New Zealand and in Niue, be read as including Niue accordingly.
(2) The High Court shall have no jurisdiction in civil proceedings under that Act.
Cf. 1915, No. 40, s. 635; 1965, No. 1, s. 3(1)
696. Occupiers Liability Act in force in Niue - The Occupiers Liability Act 1962 shall be in force in Niue.
697. Partnership Act in force in Niue - (1) The Partnership Act 1908 shall be in force in Niue.
(2) In the application of that Act to Niue-
(a) Every reference to the Supreme Court shall be read as a reference to the High Court;
(b) Every reference to a Justice of the Peace shall be read as a reference to a Judge of the High Court.
Cf. 1915, No. 40, s. 634
698. Patents Act in force in Niue - (1) The Patents Act 1953 shall be in force in Niue in the same manner in all respects as if Niue were for all purposes part of New Zealand, and the term "New Zealand" as used in that Act shall, both in New Zealand and in Niue, be read as including Niue accordingly.
(2) The High Court shall have no jurisdiction in civil proceedings under that Act.
(3) All patents in force in New Zealand at the commencement of this Act shall extend to and be in force in Niue in the same manner as in New Zealand.
Cf. 1915, No. 40, s. 635; 1965, No. 1, s. 3(1)
699. Post Office Act in force in Niue - (1) The Post Office Act 1959, except Parts XIII to XVI, shall be in force in Niue in the same manner in all respects as if Niue were for all purposes part of New Zealand subject to the following modifications.
(2) All powers conferred upon a Magistrate by that Act may be exercised in Niue by High Court.
(3) The term "New Zealand" as used in that Act shall, both in New Zealand and in Niue, be read as including Niue.
Cf. 1915, No. 40, s. 636
[*Repealed see Act 131 of 1989.]
700. Property Law Act in force in Niue - (1) The Property Law Act 1952 shall be in force in Niue.
(2) In the application of that Act to Niue-
(a) Every reference to the Supreme Court shall be read as a reference to the High Court;
(b) Every reference to a Judge shall be read as a reference to a judge of the High Court;
(c) Every reference to New Zealand shall be read as a reference to Niue;
(d) Every reference to a Registrar of the Supreme Court shall be read as a reference to the Registrar of the High Court.
Cf. 1915, No. 40, s. 637
701. Sale of Goods Act in force in Niue - The Sale of Goods Act 1908 shall be in force in Niue.
Cf. 1915, No. 40, a. 638
[701A. Seal of New Zealand Act in force in Niue - The Seal of New Zealand Act 1977 shall extend to and be in force in Niue.]
This section was inserted by s. 7(2) of the Seal of New Zealand Act 1977.
702. Trade Marks Act in force in Niue - (1) The Trade Marks Act 1953 shall be in force in Niue in the same manner in all respects as if Niue were for all purposes part of New Zealand, and the term "New Zealand" as used in that Act shall, both in New Zealand and in Niue, be read as including Niue accordingly.
(2) The High Court shall have no jurisdiction in civil proceedings under that Act.
(3) All trade marks registered in New Zealand at the commencement of this Act shall have the same protection in Niue as in New Zealand.
703. Trustee Act in force in Niue - (1) The Trustee Act 1956 shall be in force in Niue, subject to -the following modifications.
(2) Every reference in that Act to New Zealand shall be read as a reference to Niue, and every reference to the Supreme Court shall be read as a reference to the High Court.
(3) Every reference in that Act to the Registrar of the Supreme Court for any judicial district shall be read as a reference to the Registrar of the High Court.
Cf. 1915, No. 40, s. 639
704. Wills Act Amendment Act 1852 in force in Niue - The Imperial Act the Short Title of which is the Wills Act Amendment Act 1852 (15 and 16 Victoria, chapter 24) shall be in force in Niue.
Cf. 1915, No. 40, s. 640
705. Merchant Shipping Act (U.K.) not to apply to Niue - (1) It is hereby declared that the United Kingdom Merchant Shipping Act does not form part of the law of Niue.
(2) In this section the term "United Kingdom Merchant Shipping Act" means the Act of the United Kingdom Parliament instituted the Merchant Shipping Act 1894; and includes all other Acts of the United Kingdom Parliament that are to be construed as one with that Act; and also includes all Orders in Council and Proclamations under any such Act, and all other rules, regulations, or notices made or given by any United Kingdom authority under any such Act.
Cf. 1915, No. 40, s. 640A; 1962, No. 40, s. 13
706. Limitation of actions - (1) The law of Niue as to prescription and the limitation of actions shall be the same as that which is in force for the time being in New Zealand.
(2) For the purposes of the law as to prescription and the limitation of actions, New Zealand shall in Niue be deemed to be parts beyond the seas, and Niue shall in New Zealand be deemed to be parts beyond the seas.
(3) No right, title, estate, or interest in Niuean land shall be acquired or lost by prescription or limitation.
Cf. 1915, No. 40, s. 641
Miscellaneous Rules of Law
707. Legal status of married women - (1) Save where otherwise provided by this Act, the legal capacity of a married woman, whether contractual, proprietary, testamentary, or of any other kind whatsoever, shall be the same as that of an unmarried woman.
(2) Save in respect of intestate succession, marriage shall not confer on either party thereto any rights to or in respect of the property of the other.
(3) The rule of the common law that for certain purposes a husband and wife are deemed to be one person only is hereby abolished for all purposes, including the law of domicile.
(4) A husband shall not be responsible, as such, for torts committed by his wife.
(5) Nothing in this section shall affect the validity or operation of a restraint on anticipation
708. Legitimacy - (1) Every person, whether born before or after the commencement of this Act, and whether born in Niue or not, and whether or not his parents or either of them were domiciled in Niue at the time of his birth, shall for all the purposes of the law of Niue be deemed to be the legitimate child of each of his parents, and all other relationships in respect of that person shall be deemed to be traced through lawful wedlock accordingly.
(2) The provisions of this section-
(a) In so far as it affects wills, shall have effect only in relation to the wills of testators who die after the commencement of this Act; and
(b) In so far as it affects instruments other than wills, shall have effect only in relation to instruments executed after the commencement of this Act.
(3) All wills of testators who have died before the commencement of this Act, and all other instruments executed before the commencement of this Act, shall be governed by the enactments and rules of law which would have applied to them if this Act had not been passed.
(4) The estates of all persons who have died intestate as to the whole or any part thereof before the commencement of this Act shall be distributed in accordance with the enactments which would have applied to them if this Act had not been passed.
(5) No action shall lie against any executor or administrator or trustee of the estate of any person who dies after the commencement of this Act or the trustee under any instrument executed after the commencement of this Act by any person whose relationship to the deceased or to any other person or, as the case may be, to the settlor or to any other person is in any degree traced otherwise than through lawful wedlock, by reason of the executor or administrator or trustee having made any distribution of the estate or trust disregarding the claims of the person so related where at the time of making the distribution the executor, administrator, or trustee had no notice of the relationship of that person to the deceased or the settlor or any other person.
709. Joint liability - A judgment against one or more of several persons jointly or jointly and severally liable shall not operate as a bar or defence to an action or other proceeding against any of those persons against whom judgment has not been recovered, except to the extent to which the judgment has been satisfied, any rule of law notwithstanding.
Cf. 1915, No. 40, s. 643
710. Contracts of guarantee - No special promise by any person to answer for the debt, default, or miscarriage of another person, being in writing and signed by the party to be charged therewith or some other person lawfully authorised by him, shall be deemed invalid to support an action or other proceedings to charge the person by whom the promise was made by reason only that the consideration for the promise does not appear in writing or by necessary inference from a written document.
711. Contracts - (1) The jurisdiction of the High Court or of any other Court in Niue to enforce any contract made by a Niuean (other than a contract of alienation of Niuean land. duly confirmed by the Land Court) shall be discretionary; and if the Court is of opinion, having regard to the interests of the Niuean, that the contract is oppressive, unreasonable, or improvident, the Court may either refuse to enforce the contract or may enforce it only to such extent and on such terms as the Court thinks fit.
(2) Section 4 of the Statute of Frauds 1677 of the Parliament of England shall cease to be in force in Niue, except in respect of contracts made before the commencement of this Act.
Cf. 1915, No. 40, s. 645
712. Securities given by Niueans - No security given by a Niuean over any property shall be enforceable whether by the exercise of a power of sale or otherwise, without the leave of the High Court.
Cf. 1915, No. 40, s. 646
713. Employer's liability - When in any action for damages the cause of action depends on the negligence of a servant of the defendant, it shall be no defence that the plaintiff was engaged in common employment with that servant.
Cf. 1915, No. 40, s. 647
714. Liability of owners of dogs - In any action for damages for the act of a dog in attacking a human being or any animal, it shall be no defence that the defendant had no knowledge of the dangerous or mischievous character of the dog.
Cf. 1915, No. 40, s. 648
715. Distress for rent abolished - (1) Notwithstanding anything to the contrary in any Act, or in any rule of law or in any lease to the contrary, it shall not be lawful for any person to distrain for rent.
(2) This section shall extend and apply to leases granted by the Crown.
Cf. 1915, No. 40, s. 649
716. Libel and slander actionable without proof of special damage - (1) In any action in the High Court for defamation (whether libel or slander), it shall not be necessary to allege or prove special damage.
(2) This section applies for the purposes of any proceedings where the cause of action has arisen after the commencement of this Act, but does not affect any proceedings where the cause of action arose before the commencement of this Act, whenever the proceedings were commenced.
717. Calendar of Niue - The calendar in Niue shall be one day behind the calendar in New Zealand, so that the 1st day of January in Niue shall be that day which is coincident for the most part of its duration with the 2nd day of January in New Zealand, and so on from day to day throughout the year, and so that Sunday in Niue shall be that day which is coincident for the most part of its duration with Monday in New Zealand, and so on from day to day throughout the week.
Cf. 1915, No. 40, s. 650
718. Time of day in Niue - The hour of the day in Niue shall be determined as if that island were situated on the meridian 165 degrees west of Greenwich.
Cf. 1915, No. 40, s. 651(2); 1962, No. 40, s. 14
719. Statutory references to time - All references to time in any enactment in force or which may hereafter be in force in Niue shall in respect of the application of that enactment to Niue be construed in accordance with the calendar of Niue as established by this Act.
Cf. 1915, No. 40, S. 652
720. Statutory declarations - (1) Any Judge or Commissioner of the High Court or the Land Court, the Registrar of the High Court or of the Land Court, any Judge of the Land Appellate Court, the Resident Commissioner, the Comptroller of Customs, or any Justice of the Peace for Niue, Medical Officer, Commissioner of the Supreme Court, or Solicitor of the Supreme Court, may in Niue take and receive in any matter the declaration of any person voluntarily making it before him in the form in the Second Schedule to this Act.
(2) If any person wilfully makes a declaration that is false in any material particular, he is liable to imprisonment for a term not exceeding 2 years.
(3) Any declaration made in Niue under and in accordance with this section shall be deemed to be a statutory declaration within the meaning of that term as used in any enactment in force in Niue or in New Zealand.
Cf. 1915, No. 40, s. 653; 1946, No. 30, s. 53; 1965, No. 1, s. 3(1)
As to subs. (1) the reference to the Resident Commissioner is to be read as a reference to the Cabinet of Ministers by s. 2(2)(c) of the Niue Amendment Act 1974, but this substitution is not applicable to the office of Resident Commissioner in this section.
721. Execution of documents in Niue for use in New Zealand - Where in any enactment (whether in force in Niue or not) it is provided that any document executed outside New Zealand shall be admissible in New Zealand before any Court or any person acting judicially or be accepted for registration or deposit in New Zealand if the execution thereof is witnessed by a notary public, Commonwealth representative, Consular officer, or overseas representative of the Government of New Zealand, or any person holding any other specified office, it shall be a sufficient compliance with that provision, in the case of a document executed in Niue, if the execution is witnessed by the Resident Commissioner or by a Judge, or Commissioner, or the Registrar of the High Court.
As to the office of Resident Commissioner, see the note to s. 720.
722. Taxes on Niuean land - All taxes imposed by any Act, Ordinance, or other lawful authority upon Niuean land or upon any person in respect of the ownership or occupation of Niuean land shall constitute a charge upon that land.
Cf. 1915, No. 40, s. 654
As to an Ordinance, see s. 2(2)(e) of the Niue Amendment Act 1974.
723. Bankruptcy - (1) Bankruptcy in New Zealand shall have the same effect with respect to property situated in Niue as if that property were situated in New Zealand.
(2) Nothing in this section shall apply to the interest of a Niuean in Niuean land.
Cf. 1915, No. 40, s. 655; 1950, No. 92, s. 11(3)
724. Warrants of arrest - (l) Except where other provision is made by law in that behalf, any warrant for the arrest of any person in Niue may be directed either to any constable or other person by name, or generally to the constables of Niue.
(2) When such a warrant is directed to constables generally, any such constable may execute the warrant in like manner as if it was directed specially to him by name.
(3) Any such warrant may be granted and executed on a Sunday, and either by day or night.
(4) Every such warrant shall name or otherwise describe the person against whom it is issued.
(5) It shall not be necessary to make any such warrant returnable at any particular time, but it may remain in full force until executed.
Cf. 1915, No. 40, s. 656
725. Trespass ab initio - No lawful entry, seizure, arrest, or other act shall by reason of any unlawful act subsequent thereto be deemed to have been a trespass ab initio.
Cf. 1915, No. 40, s. 657
Miscellaneous Provisions
726.Banking - (1) It shall not be lawful for any person, firm, or company to carry on the business of banking in Niue, except under the authority of an [Act] and in accordance with the terms and conditions prescribed by [that Act].
(2) It shall not be lawful for any bank to issue bank notes in Niue.
Cf. 192 1) No. 14, s. 13
In subs. (1) the word "Act" was substituted for the words "Order in Council", and the words "that Act" were substituted for the words "that order", by s. 2(1), of the Niue Amendment Act 1974.
727. Sale of island products by Cabinet of Ministers on behalf of planters - [The Niue Assembly may, by Act, provide] for the making of agreements between [the Cabinet of Ministers] and any planters in Niue for the sale by [the Cabinet of Ministers] on behalf of those planters of copra and other products of Niue, and for the carrying out and enforcing of such agreements.
Cf. 1921, No. 14, s. 15; 1965, No. 1, s. 3(1)
The words in the first act of square brackets were substituted for the words "Without limiting the power to make regulations conferred by section 49 of this Act, regulations may be made under that section providing" by s. 2(1) of the Niue Amendment Act 1974.
The references to the Cabinet of Ministers, wherever they occur, were substituted for references to the Resident Commissioner by s. 2(2)(c) of the Niue Amendment Act 1974.
727A. Births and deaths - The Cabinet may from time to time to make regulations to provide for the registrations of births and deaths and the due administration thereof. provide arid the whereof
[Added3/98/1984]
Oath of Allegiance and Judicial Oath
728. Certain officers to take Oath of Allegiance and judicial oath - (1) The oath in this section referred to as the oath of Allegiance shall be in the form following, that is to say:
"I, , swear that I will bear faithful and bear true allegiance to Her [or His] Majesty [Specify the name of the reigning Sovereign, as thus: Queen Elizabeth the Second], Her [or His] heirs and successors, according to law. So help me God."
(2) The oath in this section referred to as the judicial oath. shall be in the form following, that is to say:
"I, , swear that I will well and truly serve Her [or His] Majesty [Specify as above], Her [or His] heirs and successors, according to law, in the office of ;and I will do right to all manner of people after the laws and usages of Niue, without fear or favour, affection or ill will. So help me God."
(3) Every person required to take the Oath of Allegiance and the Judicial Oath shall be entitled as of right to make his affirmation, instead of taking an oath.
(4) Every such affirmation shall be as follows: "I sincerely promise and affirm", and shall then proceed with the words of the oaths prescribed by subsections (1) and (2) of this section, omitting any words of imprecation or calling to witness.
[(5) The Oath of Allegiance and the judicial Oath shall be taken, before performing the functions of his Office as a Magistrate, by every person holding office by virtue of which he is a Magistrate within the meaning of section 247 of this Act (being a person appointed to that office after the commencement of this Act but not being a judge of the Land Court or of the Land Appellate Court).
(6) The oaths to be taken under this section shall be taken before the Chief Justice or any other Judge of the High Court or the Premier.]
(7) If any person mentioned in subsection (5) of this section declines or neglects, when the oaths required to be taken by him under this section are duly tendered, to take those oaths, he shall if he has already entered on his office vacate it, and if he has not entered on his office be disqualified from entering on it; but no person shall be compelled in respect of the same appointment to the same office to take any oath more than once:
Provided that no proceedings before any such person may be questioned in any Court solely on the ground that that person has failed to take the oaths prescribed by this section.
Cf. 1915, No. 40, s. 657A; 1957, No. 103, s. 94; 1965, No. 1, s. 3(1)
Subss. (5) and (6) were substituted for the original subss. (5) and (6) by s. 2(1) of the Niue Amendment Act 1974.
PART XXXIII
TRANSITIONAL PROVISIONS, SAVINGS, AND CONSEQUENTIAL AMENDMENT
729. Cook Islands Act and amendments not to apply to Niue - (1) The enactments specified in the Third Schedule to this Act shall as from the commencement of this Act cease to extend to or be in force in Niue.
(2) Notwithstanding anything in subsection (1) of this section, all regulations, rules, orders, Proclamations, and other acts of authority made or issued under any of the enactments specified in the Third Schedule to this Act which immediately before the commencement of this Act had effect as part of the law of Niue shall after the commencement of this Act continue to have effect as part of the law of Niue as if they had been made under the corresponding provisions of this Act, but the Governor-General may, by Order in Council, declare that any such regulations, rules, orders, Proclamations, and other acts of authority shall cease to have effect as part of the law of Niue, and every such declaration by the Governor-General shall have effect accordingly.
(3) In the application to Niue of any such regulations, rules, orders, Proclamations or other acts of authority, every reference to the Cook Islands shall be construed as a reference to Niue.
(4) Subject to the provisions of this Act, the Acts Interpretation Act 1924 shall, in relation to Niue, apply with respect to the enactments specified in the Third Schedule to this Act as if those enactments had been repealed by this Act.
730. The High Court - (1) The High Court of Niue established by section 53 of this Act is hereby declared to be the same Court as the High Court of the Cook Islands established by the Constitution of the Cook Islands, and also to be the same Court as the High Court of the Cook Islands established by the Cook Islands Act 1915, in relation to the jurisdiction exercisable in Niue by the 2 last-mentioned Courts pursuant to the Cook Islands Act 1915.
(2) All judgments, decrees, records, and acts of either of the 2 last-mentioned Courts in the exercise of its jurisdiction in Niue shall continue to have full force and effect after the commencement of this Act as judgments, decrees, records, and acts of the High Court of Niue; and all proceedings, civil or criminal, pending in the High Court of the Cook Islands in the exercise of its jurisdiction in Niue immediately before the commencement of this Act may be continued after the commencement of this Act in the High Court of Niue.
(3) The rules of the High Court of the Cook Islands in force immediately before the commencement of this Act, as far as they are applicable and with any necessary modifications, shall be deemed to be the rules of the High Court of Niue established by this Act as if they had been made under this Act. Those rules may from time to time, in their application to Niue, be amended or replaced by rules made under this Act.
(4) All persons holding office immediately before the commencement of this Act as Assessors of the High Court of the Cook Islands in relation to its jurisdiction in Niue shall be deemed to be Assessors of the High Court of Niue as if they had been appointed under the provisions of this Act.
731. The Land Court - (1) The Land Court of Niue established by section 335 of this Act is hereby declared to be the same Court as the Land Court of the Cook Islands established by the Constitution of the Cook Islands, and also to be the same Court as the Native Land Court of the Cook Islands established by the Cook Islands Act 1915, and also to be the same Court as that which existed at the commencement of the Cook Islands Act 1915 under the name of the Cook Islands Land Titles Court, in relation to the jurisdiction exercisable in Niue by the 3 last-mentioned Courts pursuant to the Cook Islands Act 1915.
(2) All judgments, decrees, records, and acts of any of the 2 last-mentioned Courts in the exercise of its jurisdiction in Niue shall continue to have full force and effect after the commencement of this Act as judgments, decrees, records, and acts of the Land Court of Niue; and all proceedings pending in the Land Court of the Cook Islands in the exercise of that jurisdiction in Niue immediately before the commencement of this Act may be continued after the commencement of this Act in the Land Court of Niue.
(3) The rules of the Land Court of the Cook Islands in force immediately before the commencement of this Act, as far as they are applicable and with any necessary modifications, shall be deemed to be the rules of the Land Court of Niue established by this Act as if they had been made under this Act. Those rules may from time to time, in their application to Niue, be amended or replaced by rules made under this Act.
732. The Land Appellate Court - (1) The Land Appellate Court of Niue established by section 386 of this Act is hereby declared to be the same Court as the Land Appellate Court of the Cook Islands established by the Constitution of the Cook Islands, and also to be the same Court as the Native Appellate Court of the Cook Islands established by section 19 of the Cook Islands Amendment Act 1946, in relation to the jurisdiction exercisable in Niue by the 2 last-mentioned Courts pursuant to the Cook Islands Amendment Act 1946.
(2) All judgments, decrees, records, and acts of either of the 2 last-mentioned Courts in the exercise of its jurisdiction in Niue shall continue in full force and effect after the commencement of this Act as judgments, decrees, records, and acts of the Land Appellate Court of Niue; and all proceedings pending in the Land Appellate Court of the Cook Islands in the exercise of that jurisdiction immediately before the commencement of this Act may be continued after the commencement of this Act in the Land Appellate Court of Niue.
(3) The rules of the Land Appellate Court of the Cook Islands in force immediately before the commencement of this Act, as far as they are applicable and with any necessary modifications, shall be deemed to be the rules of the Land Appellate Court of Niue established by this Act as if they had been made under this Act. Those rules may from time to time, in their application to Niue, be amended or replaced by rules made under this Act.
733. The Niue Public Service - (1) The Niue Public Service constituted by Part XXXI of this Act is hereby declared to be the same Service as the part of the Cook Islands Public Service established by Part III of the Cook Islands Amendment Act 1957 that comprised employees stationed in Niue.
(2) Every employee of the Cook Islands Public Service who immediately before the commencement of this Act was stationed in Niue shall be deemed to be an employee of the Niue Public Service, and shall hold the position in the last-mentioned Service corresponding to the position in the Cook Islands Public Service held by him immediately before the commencement of this Act.
(3) Every reference to the Cook Islands Public Service in any enactment not specified in the Third Schedule to this Act, or in any regulation, rule, Proclamation, order, or other enactment, or in any agreement, deed, instrument, application, licence, notice, or other document whatsoever shall, in its application to Niue, be read hereafter as a reference 'to the Niue Public Service.
(4) (a) This paragraph amended the definition of the term "Government Service" in s. 2(1) of the Government Superannuation Fund Act 1956, reprinted 1975, Vol. 4.
(b) This paragraph amended s. 50(1)-(5), and (10) of the Government Superannuation Fund Act 1956, reprinted 1975, Vol. 4.
(c) This paragraph amended s. 50(9)(e) of the Government Superannuation Fund Act 1956, reprinted 1975, Vol. 4.
(d) This paragraph amended s. 5 (1), (2), (2A), and (2B) of the Government Superannuation Fund Act 1956, reprinted 1975, Vol. 4.
(e) This paragraph amended s. 5(1) of the Government Superannuation Fund Act 1956, reprinted 1975, VOL 4.
(f) Repealed by s. 17 of the Tokelau Amendment Act 1967.
(g) This paragraph amended the proviso to s. 51(2A) of the Government Superannuation Fund Act 1956, reprinted 1975, Vol. 4.
(5) This subsection inserted subs. (9A) in s. 50 of the Government Superannuation Fund Act 1956, reprinted 1975, Vol. 4.
734. Customs - (l) Notwithstanding the repeal of the Customs Act 1913 by the Customs Act 1966, such of the provisions of the first-mentioned Act as immediately before the commencement of this Act were in force in Niue shall, after the commencement of this Act, continue in force in Niue until the commencement of Part XXX of this Act.
(2) The Customs Tariff under the Customs Act 1913, as modified in its application to goods imported into Niue by Orders in Council made before the 1st day of July 1967 under section 302 of the Customs Act 1913 shall continue in force in Niue after that date, but may, at any time on or after that date and before the commencement of Part XXX of this Act, be modified in its application to goods imported into Niue by Order in Council pursuant to the powers conferred by the said section 302.
735. Consequential amendments - (1) This subsection amended s. 4 of the Acts Interpretation Act 1924, reprinted 1966, Vol. 3, p. 1981.
(2) Every reference in any enactment not specified in the Third Schedule to this Act, or in any regulation, rule, Proclamation, order, Ordinance, or other enactment, or in any agreement, deed, instrument, application, licence, notice, or other document whatsoever, shall hereafter, in its application to Niue, be read-
(a) In the case of a reference to a Native or a descendant of a Native, as a reference to a Niue;
(b) In the case of a reference to Native land, as a reference to Niuean land;
(c) In the case of a reference to Native custom, as a reference to Niuean custom;
(d) In the case of a reference to the High Court of the Cook Islands, as a reference to the High Court of Niue;
(e) In the case of a reference to the Native Land Court of the Cook Islands or to the Land Court of the Cook Islands, as a reference to the Land Court of Niue;
(f) In the case of a reference to the Native Appellate Court of the Cook Islands or to the Land Appellate Court of the Cook Islands, as a reference to the Land Appellate Court of Niue.
(3) Every reference to the Cook Islands in any enactment which at the commencement of this Act is in force in Niue (not being an enactment specified in sections 679 to 703 of this Act or in the Third Schedule to this Act) shall hereafter, in its application to Niue, be read as a reference to Niue.
(4) Every reference to the Island Council of Niue in any Act, regulation, Ordinance, order, or other enactment, or in any agreement, deed, instrument, application, licence, notice, or other document whatsoever shall be read hereafter as a reference to the Island Assembly, and all proceedings, resolutions, and other acts of authority of the Island Council of Niue shall be deemed to be proceedings, resolutions, and acts of authority of the Island Assembly.
________
SCHEDULES
______
FIRST SCHEDULE
Section 38(2)(a)
RESERVED ENACTMENTS
Repealed by s. 2(1) of the Niue Amendment Act 1974.
________
SECOND SCHEDULE
Section 720
FORM OF DECLARATION
I, A. B. [Insert place of abode and occupation or description], solemnly and sincerely declare that [Insert facts]. And I make this solemn declaration conscientiously believing the same to be true, and by virtue of an Act of Parliament of New Zealand entitled the Niue Act 1966.
A.B.
Declared at in Niue this day of 19 before me-
C.D.,
Judge of the High Court of Niue [or Judge of the Land Court, Judge of the Land Appellate Court, Commissioner of the High Court, Commissioner of the Land Court, Registrar of the High Court, Registrar of the Land Court, Resident Commissioner of Niue, Comptroller of Customs, Justice of the Peace for Niue, Medical Officer of Niue, Solicitor of the Supreme Court of New Zealand, as the case may be].
The reference to the Resident Commissioner of Niue is to be read as a reference to the Cabinet of Ministers of Niue by s. 2(2)(c) of the Niue Amendment Act 1974, but this substitution is not applicable to the office of Resident Commissioner in this Form.
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