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Kava (Amendment) Act 2015

REPUBLIC OF VANUATU

KAVA (AMENDMENT)
ACT NO. 6 OF 2015

Arrangement of Sections

REPUBLIC OF VANUATU

Assent: 04/08/2015
Commencement: 24/01/2017

KAVA (AMENDMENT)
ACT NO. 6 OF 2015

An Act to amend the Kava Act No. 7 of 2002.

Be it enacted by the President and Parliament as follows-

1. Amendment

The Kava Act No. 7 of 2002 is amended as set out in the Schedule.

2. Commencement

This Act commences on the day on which it is published in the Gazette.

SCHEDULE

AMENDMENTS OF THE KAVA ACT NO. 7 OF 2002

1. Part 1 (Heading)

Delete “INTERPRETATION”, substitute “PRELIMINARY MATTERS”

2. Section 1 (definition of ‘kava products’,‘medicinal kava’, ‘two days kava’ and ‘wichmannii kava’)

Repeal the definitions.

3. Section 1

Insert in its correct alphabetical position

“authorised officer means a person appointed under section 1C;

Director means:

(a) for the purposes of Parts 1, 2, 3 and 4 – the Director of the Department of Agriculture;

(b) for the purposes of Part 3A – the Director of the Department of Biosecurity;

kava products include any product derived from or produced from kava;

narafala kava means any other variety of kava other than nobles kava;”

4. After section 1

Insert

“1A Functions of the Director

The Director has the following functions:

(a) to be responsible for the development, coordination and where appropriate, the implementation of Government policies and programs in relation to kava; and

(b) to prepare guidelines, standards, manuals or codes of practice and procedure for the production of kava; and

(c) to advise and provide reports to the Government on policies and implementation strategies relating to kava; and

(d) to carry out, in relation to kava production -research, assessment, monitoring and inspection; and

(e) such other functions as are conferred on the Director under this Act.

1B Delegation of functions of the Director

(1) The Director may, in writing, delegate to an officer of the Department, any of the Director’s functions under the Act.

(2) A delegation may be in relation to a particular matter or a class of matters.

(3) The Director may at any time revoke or vary a delegation.

(4) The Director may exercise a function despite delegating the function under this section.

1C Appointment of authorised officers

The Director is to appoint a person or category of persons to be authorised officers for the purposes of this Act.

1D Powers of an authorised officer

(1) For the purposes of enforcing and ensuring compliance with the provisions of this Act and its Regulations, an authorised officer may:

(a) enter any land or kava farm after notifying the owner of his or her intention to do so; and

(b) enter private premises after notifying the owner of his or her intention to do so; and

(c) enter any vessel or aircraft and make such examinations or inquiries as are necessary for ascertaining whether the export standards or requirements in relation to kava or kava products have been complied with; and

(d) examine any kava facility; and

(e) examine the content of kava or kava products to ascertain whether it has met the required standards for export; and

(f) prevent the export of kava or kava products that have not met the required standards for export; and

(g) take or remove samples of any matter required for testing and analysis of any kava or kava product; and

(h) take photographs or measurements or make sketches or recordings in any form of any kava or kava product; and

(i) require the production of records and information relevant to the requirements of this Act and its Regulations, and to make and take copies of such records and information; and

(j) interview any person for the purposes of carrying out an inspection under this Act.

(2) An authorized officer may take possession of kava and kava products that are not nobles kava if he or she reasonably believes that there will be a commercial transaction or export of that product.

(3) Any document or information collected under paragraph (1)(i) must not be disclosed unless the disclosure of the document or information is required for official purposes.

(4) A civil or criminal liability action is not to be taken against an authorised officer in respect of anything done or omitted to be done by the officer in good faith in the execution or purported execution of the powers of an authorised officer under this section.

(5) A person must:

(a) give an authorised officer any assistance to enable the authorised officer to exercise any of the powers set out under this section; and

(b) provide any document or information required by the authorised officer for the purpose of this Act.

(6) For the purposes of this section, plant includes any machinery, equipment, tool or any of its components.”

5. Subsections 3(1) and 3(2)

Delete “or medicinal kava”

6. Subsection 3(3)

Repeal the subsection, substitute

“(3) A person must not sell or offer for sale in Vanuatu any narafala kava or any kava product derived from narafala kava, whether or not in combination with nobles kava.”

7. Subsections 6(3) and (4)

Repeal the subsections, substitute

“(3) A person must not export any of the following from Vanuatu:

(a) narafala kava; or

(b) any kava product produced from narafala kava, whether or not in combination with nobles kava.

(4) Despite subsection (3), a person may export narafala kava from Vanuatu if the person has been requested to do so by a person outside of Vanuatu and the proposed export complies with the biosecurity requirements under the Plant Protection Act [CAP 239].”

8. Paragraph 7(c)

Delete “;”, substitute “.”

9. Paragraph 7(d)

Repeal the paragraph.

10. Section 8

Repeal the section.

11. After PART 3

Insert

“PART 3A – LICENSE TO EXPORT KAVA OR KAVA PRODUCTS
“9A License to export kava or kava products

(1) A person who intends to export kava or kava products is to apply to the Director for a license in the prescribed form accompanied with the prescribed application fee.

(2) An applicant must provide the Director with any additional information as may be required by the Director for the purpose of the application.

(3) The Director is to grant a license if the applicant has met all the requirements under this Act and has paid the prescribed license fee.

(4) The Director may refuse to grant or renew a license under this section if:

(a) the applicant is not a citizen of Vanuatu; or

(b) the applicant has failed to meet all the requirements under this Act and has failed to provide any information required under subsection (2); or

(c) the applicant has in the past, had his or her license cancelled for breaching the terms and conditions of the license.

(5) The Director is to determine the general and specific conditions of a license granted under this section.

(6) A license is valid for a period of 12 months from 1^st January to 31^st December of each year or on a pro rata basis.

(7) A person may renew his or her license by applying in the prescribed form to the Director.

(8) A person who exports kava or kava products without a license commits an offence and is liable on conviction, to a fine not exceeding VT1,000,000, or by a term of imprisonment of not more than 12 months, or both.

9B Suspension or cancellation of license

(1) The Director may suspend a license if:

(a) the holder of the license has failed to comply with a term or condition of the license; or

(b) it is later found that the license holder provided a false or misleading information in order to obtain a license; or

(c) the license holder has failed to comply with kava quality standards or requirements; or

(d) the license holder has breached a provision of this Act or Regulations made under this Act; or

(e) the export facility of a license holder does not meet the prescribed requirements of an export facility; or

(f) the license holder is trading in narafala kava.

(2) If a license is suspended under subsection (1), the Director is to inform the license holder in writing, of the suspension and is to require the license holder to comply with such directions as may be determined by the Director within a specified period.

(3) If a license holder fails to comply with a direction issued by the Director under subsection (2), the Director is to cancel the license.”

12. Section 11

Repeal the section.

13. After subsection 12(1)

Insert

“(1A) Without limiting the generality of subsection (1), the Minister may by Order make Regulations on any of the following:

(a) to set out the fees and charges associated with any functions or powers carried out by the relevant Department or the authorised officers under this Act;

(b) the sale of kava in the domestic or local market and matters associated with the production, bagging, packaging or labelling of kava or kava products for local sale;

(c) the export of kava and matters associated with the exportation of kava including but not limited to the requirements for export facilities, the standards of export, inspection, testing, quality certification, bagging, packaging or labelling of kava, moisture dust and fungal contents.”

14. After section 12

Insert

“12A Authorisations under the Vanuatu Commodities Marketing Board Act [CAP 133]

(1) This section applies to an authorisation to export kava issued under the Vanuatu Commodities Marketing Board Act [CAP 133] and its Regulations, if such authorisation was in force immediately before the commencement of this Act.

(2) On and after the commencement of this Act, an authorisation to which this section applies continues in force until the authorisation expires or is cancelled under the Vanuatu Commodities Marketing Board Act [CAP 133] and its Regulations.

(3) An authorisation to which this section applies cannot be extended or renewed under the Vanuatu Commodities Marketing Board Act [CAP 133] and it’s Regulations or any other Act.

(4) To avoid doubt, on and after the expiry or cancellation of an authorisation under the Vanuatu Commodities Marketing Board Act [CAP 133] and its Regulations, the provisions of this Act apply to any license to export kava.”