Division 3 of Part IX of the Environment Act 2000 creates the inspectorate and defines what it may do.
Section 118 — appointment, and the identity card
(a) an appropriately qualified officer of the National Public Service;
(aa) an appropriately qualified employee of the Conservation and Environment Protection Authority; or
(b) a person in a class declared by the Regulation to be an approved class,
and may revoke an appointment in writing.
- Section 118(2) — an appointment may specify limitations on the officer’s powers, by class of activity or by provision of the Act.
- Section 118(3) — the Director shall ensure the person has the necessary expertise or experience for the duties required.
- Section 118(4) — the Director shall provide each authorised officer with a written identity card, and the officer shall produce it to any person on demand when carrying out or about to carry out any power.
Section 118(4) makes production on demand mandatory. Because an appointment may carry limitations under section 118(2), it is also fair to ask which activities and provisions the officer is authorised for. Note the identity, the date and time.
Section 120(1) — when an officer may enter
(a) at which he believes on reasonable grounds that unlawful environmental harm is occurring; or
(b) from which he believes on reasonable grounds that environmental contaminants are being released, or on which contaminants are being deposited, stored or kept in contravention of this Act; or
(c) from which unreasonable levels of noise are being emitted.
Two conditions are cumulative: the premises must be ones on which a level 1, 2 or 3 activity is carried out, and one of the three belief-based grounds must be present.
Section 120(2) and (3) — dwellings and commercial premises
An authorised officer shall not enter a private dwelling house other than at a reasonable time, unless he has previously obtained the permission of the owner or occupier, or is acting under a search warrant obtained under the Search Act.
Where the premises are a place where commercial activities are conducted, an officer shall not enter without providing reasonable notice to the person carrying out the activities — unless the Director determines that, in all the circumstances, it is inappropriate to give notice.
Both provisions reflect section 44 of the Constitution, freedom from arbitrary search and entry. Note that the exception in section 120(3) requires a determination by the Director — not merely the officer’s own view.
Section 120(4) — the powers on entry
| Power | |
|---|---|
| (a) | Examine and inspect machinery, equipment or works used in connection with the industry or trade, the release of contaminants or the emission of noise |
| (b) | Take and remove samples of any material used or likely to be used in connection with the trade, or believed to contain a contaminant |
| (c) | Take, remove, examine and test samples to ascertain compliance with the Act, an Environment Policy, the Regulation, or the conditions, limitations or restrictions of a permit |
| (d) | Make measurements and tests, and take photographs |
| (e) | Seize evidence, including records and documents — and then provide the owner or occupier with a reasonable opportunity to obtain copies |
Where records or documents are seized, the officer shall give the owner or occupier a reasonable opportunity to obtain copies. Ask for it at the time, list what was taken, and keep the list.
Sections 121 and 122 — name, address and questions
An officer may require a person to state their name and address where the officer finds the person committing an offence, or has reasonable grounds to suspect they have committed one.
Failing to comply is an offence unless the person has a reasonable excuse: a fine up to K25,000.00 or one year’s imprisonment, or both.
Where an officer has reasonable grounds to believe that an offence has been committed and that a person may be able to give information about it, the officer may require the person to answer questions about the offence.
Failing to comply is an offence unless the person has a reasonable excuse: the same maxima.
Both offences are qualified by reasonable excuse. That is significant, because section 37(10) of the Constitution provides that no person shall be compelled in the trial of an offence to be a witness against themselves.
Contrast section 8(3), where the Act says expressly that self-incrimination is not a reasonable excuse for failing to notify harm — but balances it with a use immunity in section 8(4). Sections 121 and 122 contain no such express exclusion.
If you are asked questions about an offence you may have committed, say so, ask for the questions in writing, and take advice before answering.
Section 123 — offences in relation to officers
(a) hinders or obstructs an authorised officer in the execution of his duties; or
(b) fails to comply with a lawful requirement made by an authorised officer; or
(c) refuses an authorised officer entry to premises which he may lawfully enter; or
(d) impersonates an authorised officer,
is guilty of an offence: a fine not exceeding K50,000.00 or imprisonment for up to two years, or both.
Note the qualifiers in paragraphs (b) and (c): the requirement must be lawful, and the premises must be ones the officer may lawfully enter. Entry to a dwelling in breach of section 120(2), or to commercial premises without notice where the Director has made no determination, is not lawful entry.
Section 110 separately makes interfering with monitoring equipment an offence — K50,000 or two years, or both.
Section 119 — protection from liability
The Director, a person acting under his direction or delegation, an authorised officer or an analyst does not incur any civil liability for anything done or omitted honestly and without negligence in the course of exercising powers or carrying out duties under this Act.
The immunity is conditional on both honesty and absence of negligence. It does not protect conduct outside the Act.
If authorised officers arrive at your site
- Ask to see the identity card — section 118(4) requires production on demand.
- Ask what activity and provision the visit concerns, and whether the appointment carries limitations.
- For commercial premises, ask whether notice was given, or whether the Director has determined that notice was inappropriate.
- Do not obstruct. Section 123 carries K50,000 or two years.
- Have a nominated person accompany the officer and keep a contemporaneous note.
- Take split samples where samples are taken, and record locations, times and methods.
- List everything seized and ask for the section 120(4)(e) opportunity to copy documents.
- Be careful with questions under section 122 — ask for them in writing and take advice.
- Follow up in writing the same day, recording what happened.
- Expect an order — a Protection Order, Clean-up Order or Emergency Direction may follow.
Sources
- Environment Act 2000 — ss 8, 110, 118–123; Part IX Division 3
- Search Act — PacLII 1986 Revised Edition
- Constitution — ss 37, 41, 44, 49
- Conservation and Environment Protection Authority Act 2014
Before relying on anything here, read the current text of the Environment Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.