Commerce Act 1998

FIJI

COMMERCE ACT 1998

ARRANGEMENT OF SECTIONS

SECTION

Part 1-PRELIMINARY

1 Short title
2 Commencement
3 Interpretation
4 Regulated industries - declarations

Part 2-COMMERCE COMMISSION

5 Establishment of Commission
6 Membership of Commission
7 Associate members
8 Procedure of Commission
9 Objectives in relation to access
10 Functions
11 Commission not subject to Ministerial control
12 Staff of Commission
13 Arrangements with other entities
14 delegation of Commission is functions
15 Bank accounts
16 Funds of Commission
17 Exemption from certain taxes and duties
18 Annual Report

Part 3-ACCESS AGREEMENTS

19 Notice of Access agreements
20 Registration of access agreements
21 Failure to notify proposals and agreements
22 Register of agreements

Part 4-ARBITRATION OF ACCESS REGIME DISPUTES

23 Interpretation
24 Negotiations on access
25 Arbitration of access disputes
26 Appointment and functions of arbitrator
27 Previous activities as member of Commission does not disqualify member from acting as arbitrator
28 determination of dispute by arbitrator
29 Parties required to give effect to determination
30 Termination of arbitration

Part 5-CONTROL OF PRICES

31 Interpretation
32 Minister may impose price control in circumstances of restricted competition
33 Commission may be required to report to Minister as to price control
34 Controlled goods or services not to be supplied except in accordance with authorised price
35 Records to be kept for pricing purposes
36 Other laws relating to price control not affected

Part 6-INFORMATION

37 Provision of information to Commission
38 Restrictions on publication
39 Inspection of documents
40 Disclosure of confidential information
41 Confidential information - notice to show cause
42 Confidential information - general disclosure
43 Confidential information - disclosure within the Commission
44 Cabinet documents

Part 7-CO-OPERATION WITH THE COMMISSION

45 Attendance before Commission
46 Non-co-operation offences

Part 8-ENFORCEMENT OF ARBITRATION DETERMINATIONS

47 Application
48 Orders
49 Injunctions and declarations

Part 9-MISCELLANEOUS

50 Conduct of directors, servants and agents
51 Personal liability of members etc
52 Service of documents on Commission
53 Regulations

SCHEDULE 1 - Provisions relating to Members of Commission
SCHEDULE 2 - Provisions relating to procedure of Commission at meetings

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ACT NO. 50 OF 1998

I assent.

K. K. T. MARA
President

[9 November 1998]

AN ACT
TO PROMOTE COMPETITION IN MARKETS IN THE FIJI ISLANDS

ENACTED by the Parliament of the Fiji Islands

Part 1-PRELIMINARY

Short title

1. This Act may be cited as the Commerce Act 1998.

Commencement

2. This Act commences on a date appointed by the Minister and published in the Gazette.

Interpretation

3.-(1) In this Act, unless the contrary intention appears-

"access agreement" means an agreement under an access regime for the granting of access to infrastructure facilities, or to services provided by means of infrastructure facilities;

"access regime" means a scheme (whether of a legislative or administrative nature, or any other nature) set up to permit third-party access to infrastructure facilities, or to a service provided by means of infrastructure facilities, that are wholly or substantially owned, controlled or operated by a single person;

"Chairperson" means the Chairperson of the Commission;

"Commission" means the Commerce Commission established by Section 5;

"Deputy Chairperson" means the Deputy Chairperson of the Commission;

"determination" means an arbitration determination under section 28;

"document" means a document in any form whether signed or initialled or otherwise authenticated by its maker or not, and includes-

material on which there is writing or printing;

information recorded or stored by means of any tape-recorder, computer or other device and material subsequently derived from information so recorded or stored;

(a) a label, marking or other writing that identifies or describes any thing of which it forms part, or to which it is attached by any means;

(b) a book, map, plan, graph or drawing; and

(c) a photograph, film, negative, tape, or other device in which one or more visual images are embodied so as to be capable (with or without the aid of other equipment) of being reproduced;

"Fair Trading Decree" means the Fair 'trading Decree 1992;

"financial year" in relation to the Commission, means a period of 12 months commencing on 1 January;

"government agency" means a government entity, within the meaning of the Public Enterprise Act 1996, that supplies services to the public or any part of the public;

"member" means a member of the Commission;

"referring authority" in relation to a regulated industry, means the Minister having responsibility for that industry;

"regulated industry" means-

(a) an industry engaged in the supply of electricity, water, sewerage, post, broadcasting, telecommunications, ports or civil aviation services; or

(b) any other industry that is declared under Section 4 to be a regulated industry.

(2) Unless the contrary intention appears, a word or phrase used in this Act that is defined in the Fair Trading Decree has the same meaning as it has in that Decree.

(3) For the purposes of the definition of "access regime" in subsection (1) a service includes-

(a) the use of an infrastructure facility (such as a road or railway);

(b) the handling or transporting of things (such as goods or people); and

(e) a communications service or similar service; but does not include-

(d) the supply of goods; or

(e) the use of intellectual property or a production process, except to the extent that supply or use is an integral but subsidiary part of the service.

(4) If two or more persons jointly own, control or operate infrastructure facilities-

(a) a reference in this Act to the ownership, control or operation of infrastructure facilities includes a reference to the jointly owned, controlled or operated infrastructure facilities; and

(b) a reference in this Act to a person who owns, controls or operates infrastructure facilities includes a reference to each joint owner, controller or operator.

(5) If two or more persons jointly provide services-

(a) a reference in this Act to the provision of services includes a reference to the jointly provided services; and

(b) a reference in this Act to a person who provides services includes a reference to each joint provider.

Regulated industries- declarations

4.-(1) Any Minister may, by instrument, declare an industry to be a regulated industry for the purposes of this Act.

(2) A Minister may make a declaration under subsection (1) if he or she is satisfied that-

(a) the industry infrastructure facilities are in whole or in part owned, controlled or operated by the State or by a government agency;

(b) the industry involves the provision of services in whole or in part by or on behalf of the State or a government agency;

(e) the industry infrastructure facilities are wholly or substantially owned, controlled or operated by a single person; or

(d) the industry involves the provision of services wholly or substantially by or on behalf of a single person.

(3) A declaration under subsection (1) must be made by order published in the Gazette.

Part 2-THE COMMERCE COMMISSION

Establishment of Commission

5.-(1) This section establishes the Commerce Commission.

(2) The Commission-

(a) is a body corporate, with perpetual succession;

(b) must have a common seal;

(c) may acquire, hold and dispose of real and personal property; and

(d) may sue and be sued in its corporate name.

(3) The common seal of the Commission is to be kept in such custody as the Commission directs and must not be used except as authorised by the Commission.

(4) All courts, judges and persons acting judicially must take judicial notice of the common seal of the Commission affixed to a document and must presume that it was duly affixed.

Membership of Commission

6.-(1) The Commission consists of not less than 3 nor more than 5 members.

(2) The members are appointed by the Minister.

(3) One member is to be appointed as Chairperson and another is to be appointed as Deputy Chairperson.

(4) A person must not be appointed as a member unless, in the opinion of the Minister, he or she is qualified for appointment, having regard to the functions of the Commission, by virtue of his or her knowledge of or experience in industry, commerce, economics, law, accountancy, public administration, or consumer affairs.

(5) A member holds office for such term, not exceeding 5 years, as the Minister specifies in the member's instrument of appointment but is eligible for reappointment.

(6) A member is entitled to be paid such remuneration by way of fees, salary or allowances as is fixed from time to time by the Higher Salaries Commission.

(7) Members are to be paid such travelling allowances and expenses as the Minister approves from time to time.

(8) An act or decision of the Commission is not invalid merely because of a defect or irregularity, in, or in connection with, the appointment of a member or a vacancy in the office of a member.

(9) Schedule 1 has effect with respect to the members of the Commission.

Associate members

7.-(1) The Minister may from time to time appoint a person to be an associate member of the Commission.

(2) An associate member is to be appointed-

(a) only in relation to a matter or class of matters specified in the member's instrument of appointment; and

(b) for such period, not exceeding 3 years, as is specified in the instrument.

(3) Subject to subsection (4), an associate member is taken to be a member for the purposes of the performance by the Commission of a function of the Commission and, unless the contrary intention appears, a reference in this Act to a member includes a reference to an associate member.

(4) An associate member may attend and vote only at a meeting of the Commission relating to the matter or class of matters specified in the member's instrument of appointment (including a meeting at which matters incidental to that matter or class of matters are considered).

Procedure of Commission

8. Schedule 2 has effect with respect to the procedure of the Commission.

Objectives in relation to access

9. The Commission has the following objectives in relation to regulated industries and access regimes-

(a) to promote effective competition in the interests of consumers;

(b) to facilitate an approximate balance between efficiency and environmental and social considerations;

(c) to ensure non-discriminatory access to monopoly and near monopoly infrastructure or services.

Functions

10.-(1) The Commission has the following functions in relation to regulated industries-

(a) the provision of advice to the Minister about proposed access agreements;

(b) the maintenance of a register of access agreements;

(c) the facilitation of negotiations about access to infrastructure facilities or services under access regimes;

(d) the arbitration of disputes about access to infrastructure facilities or services under access regimes;

(e) if, under a law relating to a regulated industry, the referring authority delegates to the Commission the power to impose, modify or revoke conditions in respect of licences granted under that law - the imposition, modification and revocation of those conditions in accordance with the relevant delegation;

(f) any other function conferred on the Commission by or under this or another law.

(2) The Commission has the following functions in relation to the Fair Trading Decree-

(a) to administer those provisions of the Decree in respect of which functions are conferred on it on or under the Decree;

(b) to facilitate the operation of the Decree.

(3) The Commission has such other functions as are conferred on it by or under this Act or any other written law.

Commission not subject to Ministerial control

11. Except as provided by this Act, the Commission is not subject to the control or direction of the Minister or any other referring authority in the performance of its functions.

Staff of Commission

12.-(1) The Commission may from time to time appoint such employees (including employees on secondment from other organisations) as it thinks necessary for the efficient performance of its functions and, subject to subsection (2), may at any time terminate or suspend the employment of any employee.

(2) Employees are to be employed on such terms and conditions and are to be paid such salaries and allowances as the Commission from time to time determines.

(3) The Commission may arrange for the use of the services of any staff or facilities of a government agency.

Arrangements with other entities

13.-(1) The Commission may enter into arrangements with any government agency, or other body or person (whether in the public or private sector), for the provision of assistance to the Commission in connection with the performance of the functions of the Commission.

(2) The Commission may engage consultants to assist it in the performance of its functions.

Delegation of Commission's functions

14.-(1) Subject to this section, the Commission may, in writing, delegate its functions to any member, to any member of the staff of the Commission or to any committee of persons (whether of members only or members and other persons).

(2) The Commission may not delegate its function of providing advice about proposed access agreements to a committee that includes persons who are not members of the Commission.

(3) If the Commission is conducting an arbitration, it roust not delegate its function of making a determination in relation to the arbitration.

Bank accounts

15.-(1) The Commission must open at one or more banks such accounts as are necessary for the performance of its functions.

(2) Money received by the Commission or by any officer or employee on behalf of the Commission, must, as soon as practicable after it has been received, be paid into such bank account opened under subsection (1) as the Commission from time to time determines.

(3) The withdrawal or payment of money from an account opened under subsection (1) roust be authorised by prior resolution of the Commission or must be submitted to the Commission for confirmation as soon as practicable after the withdrawal or payment.

(4) The withdrawal or payment of money from an account opened under subsection (1) may be made only by such person or persons as the Commission from time to time authorises.

Funds of Commission

16.-(1) The funds of the Commission consist of-

(a) all money appropriated by the Parliament for the purposes of the Commission and paid to it for those purposes;

(b) all other money lawfully received by the Commission for the purposes of the Commission; and

(c) all accumulations of income derived from money referred to in paragraph (a) or (b).

(2) All fees, salaries, wages, allowances, expenses and other expenditure payable or incurred under, or in administration of, this Act are payable out of money appropriated by the Parliament for the purpose.

Exemption from certain taxes and duties

17.-(1) The income of the Commission is exempt from income tax.

(2) The Commission is exempt from stamp duty on all instruments executed by it or on its behalf.

Annual report

18.-(1) Within 4 months after the end of each financial year, the Commission must prepare a report of its activities during that financial year (annual report).

(2) The Commission must send a copy of the annual report to the Minister who must cause it to be laid before parliament as soon as practicable.

(3) The annual report must contain, among other things-

(a) details of-

(i) advice about proposed access agreements;

(ii) the number of access agreements notified;

(iii) arbitration disputes;

(iv) determinations of arbitration disputes;

(v) the number of notices issued under section 37;

(vi) the general use made by the Commission, of information and documents obtained as a result of notices issued under section 37;

(b) information about the activities of the Commission under Part 5;

(c) information about the performance of the Commission's functions under Part VIIIA of the Fair Trading Decree and under any other provisions of that Decree that confer functions on the Commission;

(d) an audited statement of accounts prepared in accordance with generally accepted accounting practice as determined by the Fiji Institute of Accountants;

(e) a statement of the Commission's financial performance, including a statement of the financial position;

(f) a statement of cashflows;

(g) any other information required to give a true and fair view of the Commission's financial affairs; and

(h) a copy of the auditor's report.

Part 3-ACCESS AGREEMENTS

Notice of access agreements

19.-(1) A person who proposes to enter into an access agreement in relation to-

(a) infrastructure facilities in a regulated industry; or

(b) services in a regulated industry provided by means of infrastructure facilities,

being facilities or services that are wholly or substantially owned, controlled or operated by the person, must notify the Commission of the proposal at least 30 days before entering into the agreement.

(2) A person who notifies the Commission under subsection (1) must, at the request of the Commission, give the Commission a copy of the proposed access agreement and any requested details of the proposal.

(3) The Commission may give advice about the proposal to-

(a) the person who noticed the proposal; and

(b) the Minister.

Registration of access agreements

20.-(1) A person who enters into an access agreement in relation to -

(a) infrastructure facilities in a regulated industry; or

(b) services in a regulated industry provided by means of infrastructure facilities,

being facilities or services that are wholly or substantially owned, controlled or operated by the person, must notify the Commission of that fact.

(2) A person who notifies the Commission under subsection (1) must, at the request of the Commission, give the Commission a copy of the access agreement and any requested details of the agreement.

(3) The Commission must register an access agreement provided under subsection (2) in the register referred to in section 22, including in the record of registration:

(a) the names of the parties to the agreement;

(b) the regulated industry, and the particular services, to which it relates;

(c) the date on which it was made;

(d) any other details prescribed by the regulations.

Failure to notify proposals and agreements

21.-(1) If a person fails to notify the Commission under section 19 of a proposal for an access agreement, or under section 20 of entering into an access agreement, the Commission may request the person to provide the Commission with written reasons for the failure.

(2) The Commission must give a report to the Minister about a failure to notify a proposal for an access agreement or the entering into of an access agreement, and include in the report any reasons provided under subsection (1).

(3) A failure to comply with section 19 or 20, or a failure by the Commission to give advice under section 19, does not affect the validity of the agreement.

Register of agreements

22.-(1) The Commission must maintain a register of agreements for the purposes of this Part.

(2) The Commission must make the register maintained under subsection (1) available for inspection by any person during the office hours of the Commission or such other hours as are prescribed by the regulations.

Part 4-ARBITRATION OF ACCESS REGIME DISPUTES

Interpretation

23. In this Part-

"access provider" means the person that, under an access regime, wholly or substantially owns, controls or operates the infrastructure facilities or ser-vices concerned;

"third party", in relation to infrastructure facilities or services, means a person who desires access to the infrastructure facilities or the services, or desires a change to some aspect of that access.

Negotiations on access

24.-(1) If an access provider and a third party propose to negotiate, or are negotiating, with a view to-

(a) agreeing on terms and conditions for access to infrastructure facilities or services; or

(b) agreeing on a variation of an access agreement to which they are parties,

either or both of them may request the Commission to arrange for a representative of the Commission to attend the negotiations.

(2) The Commission must comply with a request or requests under subsection (1) by taking steps to ensure that-

(a) a member of the Commission;

(b) a member of the staff of the Commission; or

(c) a person whose services are made available to the Commission under subsection 12(3),

attends the negotiations on its behalf with a view to facilitating agreement between the parties.

Arbitration of access disputes

25.-(1) If a dispute exists with respect to an access regime, a party to the dispute may refer the dispute to arbitration under this Part.

(2) The Arbitration Act (Cap. 38) applies to an arbitration under this Part subject to this Part and the regulations.

(3) A dispute is taken to exist with respect to an access regime if-

(a) the third party and the access provider are unable to agree about any aspect of access to the infrastructure facilities or the services provided under that regime; or

(b) the third party and the access provider are unable to agree about a variation of an existing determination.

(4) The parties to a dispute referred to arbitration under this Part are the third party and the access provider.

Appointment and functions of arbitrator

26.-(1) The Commission, or a person appointed under subsection (2), may act as arbitrator to hear and determine a dispute referred to arbitration under this Part.

(2) The Commission may appoint one or more persons to act as arbitrators to hear and determine a dispute referred to arbitration under this Part.

(3) If a dispute involves a third party who desires, but does not have, access to infrastructure facilities or services, the arbitrator must give public notice of the dispute. The notice must invite submissions to the arbitrator from the public concerning the dispute and specify when and how those submissions may be made.

(4) in the arbitration of a dispute referred under this Part, or in the variation of an existing determination, the arbitrator must take into account-

(a) the access provider's legitimate business interests and investment in the infrastructure facilities or services;

(b) the costs to the access provider of providing access, including any costs of extending the facilities but not costs associated with losses arising from increased competition in upstream or downstream markets;

(c) the terms of access for the third party;

(d) the economic value to the access provider of any additional investment that the third party or the access provider has agreed to undertake;

(e) the interests of all persons holding contracts for use of the facilities;

(f) firm and binding contractual obligations of the access provider and other persons already using the facilities or services;

(g) the operational and technical requirements necessary for the safe and reliable operation of the facilities or services;

(h) the economically efficient operation of the facilities or services;

(i) the benefit to the public from having competitive markets;

(j) whether, if the access provider were required or permitted to extend the infrastructure facilities, the extension should be technically and economically feasible and consistent with the safe and reliable operation of the facilities;

(k) the compensation (if any) which should be paid to the access provider;

(l) in a case to which subsection (3) applies any submissions made concerning the dispute by the public;

(m) any other matters that the arbitrator considers relevant.

(5) Parts 16 and 7 apply in relation to an arbitration as if references in those parts to the Commission were references to the arbitrator.

Previous activities as member of Commission do not disqualify
member from acting as arbitrator

27. A member is not disqualified from acting as an arbitrator to hear and determine a dispute referred to arbitration under this Part merely because, under section 24, the member represented the Commission at negotiations about the matter for arbitration.

Determination of dispute by arbitrator

28.-(1) The arbitrator must determine the dispute by making a written determination on access to the infrastructure facilities or the services by the third party.

(2) A determination under subsection (1) may deal with any matter relating to access by a third party to the infrastructure facilities or the services, including matters that were not the basis for notification of the dispute and matters such as-

(a) a requirement that the access provider give the third party access to specified infrastructure facilities or services;

(b) a requirement that the third party accept, and pay for, access to the infrastructure facilities or services;

(c) a determination of the terms and conditions of access to the infrastructure facilities or services;

(d) a requirement that the access provider extend the infrastructure facilities; (e) a determination of the extent to which the determination is to override any earlier determination relating to access to the infrastructure facilities or services by the third party.

(3) The determination need not require the provider to provide access to the infrastructure facilities or services by the third party.

Parties required to give effect to determination

29.-(1) The parties to an arbitration must give effect to a determination under section 28.

(2) 1f the determination is in favour of the third party's access to infrastructure facilities or services, the access provider must not engage in conduct for the purpose of preventing or hindering the third party's access to the infrastructure facilities or services under the determination.

Termination of arbitration

34.-(1) An arbitrator may, without making a determination, terminate the arbitration at any time if the arbitrator thinks that any of the following grounds exists-

(a) the notification of the dispute was vexatious;

(b) the subject-matter of the dispute was trivial, misconceived or lacking in substance;

(c) the party who notified the dispute has not engaged in negotiations in good faith,

(d) access to the infrastructure facilities or services should continue to be governed by an existing contract between the access provider and the third party;

(e) if the dispute is about varying an existing determination - there is no sufficient reason why the previous determination should not continue to have effect in its present form.

Part 5-CONTROL OF PRICES

Interpretation

31. In this Part, unless the contrary intentions appears-

"controlled goods or services" means goods or services in respect of which an Order is for the time being in force;

"order" means an order made under section 32.

Minister may impose price control in circumstances of restricted competition

32.-(1) The Minister may, on a recommendation of the Commission, by Order declare that the prices for goods or services specified in the order are controlled in accordance with this pct.

(2) The Commission must not make a recommendation under subsection (1) unless it is satisfied that-

(a) goods or services to which the recommendation relates are or will be supplied or acquired in a market in which competition is limited or is likely to be lessened; and

it is necessary or desirable for the prices of those goods or services to be controlled in accordance with this Act in the interests of users, consumers or suppliers.

(3) An Order may identify the goods or services to which it relates-

(a) by a description of the goods or services; or

(b) by a description of the class to which the goods or services belong.

(4) An Order may apply to goods and, with necessary modifications, to services-

(a) supplied in or for delivery within specified regions, areas, or localities in the Fiji Islands;

(b) supplied in different quantities, qualities, grades, or classes; or

(c) supplied by, or to, or for the use of different persons or classes of persons.

(5) Every Order must specify the date on which it expires.

Commission may be required to report to Minister as to price control

33.-(1) The Minister may, by notice in writing to the Commission, require it to report to the Minister, by such date as the Minister specifies, on whether an order should be extended, amended, varied or revoked.

(2) if the Commission is required by the Minister to report under subsection (1)-

(a) the Commission must cause to be published, in the Gazette and in any other manner as the Commission considers appropriate, a notice-

(i) stating that the requirement has been made and specifying the matter to which it relates; and

(ii) inviting interested persons to furnish their views on that matter to the commission, and specifying the time and manner within which they may do so; and

(b) the Com a mission must not submit a report to the Minister until it has given a reasonable opportunity to interested persons to furnish their views in accordance with paragraph (a)(ii).

(3) The Commission may, of its own motion, recommend to the Minister that an Order be extended, amended, varied or revoked.

(4) The Minister must case a copy of every report submitted to the Minister by the Commission under this section to be published in such manner as he or she considers appropriate.

(5) Nothing in this section limits or affects the powers of the Minster under section 32.

Controlled goods or services not to be supplied except
in accordance with authorised price

34.-(1) A person must not supply any controlled goods or services unless a price far those goods or services has been authorised by the Commission and the goods or services are supplied in accordance with the authorisation.

Penalty: $50,000.

(2) Any provision of a contract, and any covenant, in contravention of subsection (1) is unenforceable.

Records to be kept for pricing purposes

35.- (1) A supplier of controlled goods or services must retain such accounts and costing records in relation to the controlled goods or services as the Commission from time to time specifies either in relation to suppliers of those goods or services generally or in relation to a particular supplier of the goods or services.

(2) A supplier of controlled goods or services must retain the accounts and records referred to in subsection (1) for a period of 3 years from the date of the revocation or expiry of the Order in respect of the controlled goods or services to which they relate.

Penalty: $100,000

Other laws relating to price control not affected

36. Nothing in this Part or the Fair Trading Decree limits or affects the exercise by a person or body other than the Commission of a power under any other law to fix maximum prices for goods or services.

Part 6-INFORMATION

Provision of information to Commission

37.-(1) If the Commission has reason to believe that a person has information or a document that may assist it in performing its functions, it may, by written notice, rewire the person to give it the information or a copy of the document.

(2) A requirement under subsection (1) must-

(a) identify the information or document;

(b) specify the period within which the requirement is to be complied with;

(c) specify the form in which the information or the copy of the document is to be given to the Commission;

(d) state that it is made under this section; and

(e) be accompanied by a copy of this Part.

(3) A person must not, without reasonable excuse, fail to comply with a requirement under this section.

Penalty:

(a) if the offender is a natural person - $1,000 and imprisonment for 12 months;

(b) if the offender is a body corporate - $5,000.

(4) It is a reasonable excuse for the purposes of subsection (3) that to comply with the notice or to answer the question might tend to incriminate the person or make the person liable to any forfeiture or penalty.

Restrictions on publication

38.-(1) The Commission may, if satisfied that for any reason it is desirable to do so, give directions prohibiting or restricting the disclosure of matters contained in documents or information given to the Commission.

(2) A person must not contravene a direction under subsection (1).

Penalty:

(a) if the offender is a natural person - $1,000 and imprisonment for 12 months,

(b) if the offender is a body corporate - $5,000.

Inspection of documents

34.-(1) Notwithstanding section 38, the Commission must make a document (including any statement or document given to the Commission under section 37) available for inspection on request by a person unless-

(a) the document contains confidential information, and its disclosure is not otherwise permitted by this Part; or

(b) the Commission considers that the disclosure of information in the document could reasonably be expected to damage the commercial or other interests of the State, of the person who supplied the document or of a person who provides regulated services.

(2) In making a document available under subsection (1), the Commission may, if it considers that paragraph (a) or (b) of that subsection applies to any information in the document, do either or both of the following-

(a) make a part or parts only of the document available, or make the document available with a part or parts deleted, in order not to disclose that information;

(b) impose conditions on the availability of part or all of the document (for example, conditions limiting the availability to certain classes of persons or requiring persons not to reveal the contents of the part or document).

(3) A. person must not contravene a condition imposed under subsection (2)(b).

Penalty:

(a) if the offender is a natural person - $1,0010;

(b) if the offender is a body corporate - $5,000.

Disclosure of confidential information

40.-(1) A person must not disclose any confidential information obtained in carrying out the person's functions in relation to this Act, except in accordance with subsection (3).

Penalty:

(a) if the offender is a natural person - $1,1000 and imprisonment for 12 months,

(b) if the offender is a body corporate - $5,1000.

(2) A person must not use any confidential information obtained in carrying out the person's functions in relation to this Act to obtain, directly or indirectly, a pecuniary or other advantage for himself or herself or any other person, except in accordance with subsection (3).

Penalty:

(a) if the offender is a natural person-$1,000 and imprisonment for 12 months;

(b) if the offender is a body corporate - $5,1000.

(3) A person may disclose or use confidential information if

(a) the disclosure or use is made in the performance of a function in relation to this Act or any other law permitting such disclosure or use;

(b) the disclosure or use is made with the consent of the person who supplied the information;

(c) the disclosure or use is made in legal proceedings at the direction of a court; or

(d) the information is in the public domain at the time that it is disclosed.

(4) For the avoidance of doubt, subsection (3) does not override any right another person may have with regard to the disclosure or use of the information.

Confidential information - notice to show cause

41.-(1) If the Commission proposes to disclose confidential information under section 42, it must first give any affected person written notice inviting the person to show cause, within 28 days after the date the notice is given, why the confidential information should not be disclosed.

(2) A notice under subsection (1) must contain-

(a) particulars of the proposed disclosure, including details of the person or persons to whom the confidential information is to be disclosed;

(b) particulars of the facts and circumstances relied upon by the Commission to justify the disclosure; and

(c) a statement to the effect that the affected person may, within 28 days after the day on which the notice is given, give the Commission particulars of the facts and circumstances relied on to show cause why the proposed disclosure ought not to be carried out.

(3) in this section-

"affected person" means-

(a) the supplier of the confidential information to the Commission; or

(b) any person who provided the confidential information to that supplier, if the Commission is aware of the identity and address of that person.

Confidential information - general disclosure

42.-(1) Subject to section 43, the Commission may only disclose confidential information if-

(a) it is of the opinion-

(i) that the disclosure would not cause detriment to the person who provided the information or document; or

(ii) that, although the disclosure would cause such detriment, the public benefit in disclosure outweighs the detriment;

(b) it is of the opinion, in relation to any other person who is aware of the information or the contents of the document-

(i) that the disclosure would not cause detriment to that person; or

(ii) that, although the disclosure would cause detriment to the person the public benefit in disclosure outweighs the detriment;

(c) it gives a notice to show cause in relation to the information or document under section 41; and

(d) 28 days have elapsed since the notice was given.

(2) in making a decision under subsection( 1), the Commission must take into account any representation made in accordance with the invitation in the notice under section 41.

(3) for the purposes of this section, the disclosure of anything that is in the public domain at the time the Commission proposes to disclose it is not to be taken to cause detriment to any person referred to in subsection (1)(a) or (b).

Confidential information-disclosure within the Commission

43.-(1) The Commission may disclose confidential information to any of the following persons for the purposes of the performance of its functions-

(a) a delegate of the Commission, or a member of a committee that is a delegate of the Commission;

(b) a member of staff of the Commission;

(c) a person, body or consultant witch which or whom the Commission has entered into an arrangement as referred to in section 13.

(2) A person to whom confidential information is disclosed under subsection (1) may disclose the information to another person referred to in that subsection for the purposes of the performance of the functions of the Commission.

Cabinet documents

44. Nothing in this Act entitles the Commission-

(a) to require a person to give any statement or information or answer any question which relates to Cabinet proceedings;

(b) to require any person to produce an official record of Cabinet; or

(c) to inspect an official record of Cabinet.

Part 7-CO-OPERATION WITH THE COMMISSION

Attendance before Commission

45. For the purpose of performing its functions the Commission may, by notice in writing served on a person, require the person to attend before the Commission to give evidence.

Non-co-operation offences

46.-(1) A person must not, without reasonable excuse -

(a) fail to comply with a notice served under section 45; or

(b) fail to answer a question that the Commission requires the person to answer for the purposes of this Act.

Penalty:

(a) if the offender is a natural person- $1,01010 and imprisonment for 12 months;

(b) if the offender is a body corporate - $5,0100.

(2) It is a reasonable excuse for the purposes of subsection (1) that to comply with the notice or to answer the question might tend to incriminate the person or make the person liable to any forfeiture or penalty.

(3) A person must not-

(a) give to the Commission, whether orally or in writing information that the person knows to be false or misleading in a material particular; or

(b) give to the Commission evidence that the person knows to be false or misleading in a material particular.

Penalty:

(a) if the offender is a natural person - $1,000 and imprisonment for 12 months;

(b) if the offender is a body corporate - $5,000.

(4) A person must not hinder, obstruct or interfere with the Commission, a member of the Commission, a member of staff of the Commission or a person assisting the Commission in the performance of its functions.

Penalty:

(a) if the offender is a natural person - $1,000 and imprisonment for 12 months;

(b) if the offender is a body corporate - $5,000.

(5) A person must not-

(a) threaten, intimidate or coerce another person because the other person assisted, or intends to assist, the Commission in the performance of its functions; or

(b) take or threaten to take, incite or be otherwise involved in an action that causes another person to suffer any loss, injury or disadvantage because the person assisted, or intends to assist, the Commission in the performance of its functions.

Penalty:

(a) if the offender is a natural person-$1,000 and imprisonment for 12 months;

(b) if the offender is a body corporate - $5,000.

(6) Civil proceedings do not lie against a person in respect of loss; damage or injury of any kind suffered by another person because of the making in good faith of a written or oral statement, or the giving in good faith of a document or information, to the Commission in the course of the performance (or purported performance) of its functions.

Part 8-ENFORCEMENT OF ARBITRATION DETERMINATIONS

47. This Part applies if - application

(a) a person contravenes, or is, in the opinion of the Commission, likely to contravene, a determination; and

(b) the Commission considers that the contravention or likely contravention is not trivial.

Orders

48.-(1) If this Part applies in relation to a person, the Commission may serve an order on the person requiring the person to comply with the determination.

(2) If the Commission proposes to make an order in respect of a person, it roust first give the person written notice inviting the person to show cause, within 28 days after the date of the notice, why the order should not be made.

(3) A notice under subsection (2) must contain -

(a) particulars of the proposed order;

(b) particulars of the facts and circumstances relied upon by the Commission to justify the order;

(c) a statement to the effect that the person may, within 28 days after the day on which the notice is given, give the Commission particulars of the facts and circumstances relied on to show cause why the proposed order should not be made.

(4) In considering whether to make an order in respect of a person, the Commission roust take into account any representation made by the person pursuant to the invitation in the notice under subsection (2).

(5) The Commission must, as soon as possible after serving an order on a person, publish a copy of the order in the Gazette.

(6) A person must not, without reasonable excuse, contravene an order served on the person under subsection (1).

Penalty:

(a) in the case of a natural person - $2,000;

(b) in the case of a body corporate- $10,000.

(7) If a person is convicted of an offence against subsection (6) in relation to the contravention of an order, the person is, in respect of each day after the service of the order during any part of which that contravention continues, guilty of an offence punishable on conviction by a fine of-

(a) in the case of a natural person - $200;

(b) in the case of a body corporate - $1,000.

Injunctions and declarations

49. The Commission may apply to the High Court for an injunction or declaration (or both) in respect of an order served under subsection 48(1).

Part 9-MISCELLANEOUS

Conduct of directors, servants and agents

50.-(1) When, for the purposes of this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show-

(a) that the conduct was engaged in by a director, servant or agent of the body within the scope of his or her actual or apparent authority; and

(b) that the director, servant or agent had the state of mind.

(2) Any conduct engaged in on behalf of a body corporate by a director, servant or agent of the body within the scope of his or her actual or apparent authority is taken, for the purposes of this Act, to have been engaged in also by the body unless the body establishes that took reasonable precautions and exercised due diligence to avoid the conduct.

(3) When, for the purposes of this Act, it is necessary to establish the state of mind of a natural person in relation to particular conduct, it is sufficient to show-

(a) that the conduct was engaged in by a servant or agent of the person within the scope of his or her actual or apparent authority; and

(b) that the servant or agent had the state of mind.

(4) Any conduct engaged in on behalf of a natural person by a servant or agent of the person within the scope of the servant's or agent's actual or apparent authority is taken, for the purposes of this Act, to have been engaged in also by the person unless he or she establishes that he or she took reasonable precautions and exercised due diligence to avoid the conduct.

(5) If-

(a) a natural person is convicted of an offence; and

(b) the person would not have been convicted of the offence in the absence of subsections (3) and (4), the person is not liable to be punished by imprisonment for that offence.

(6) A reference in subsection (1) or (3) to the state of mind of a person includes a reference to-

(a) the knowledge, intention, opinion, belief or purpose of the person; and

(b) the person's reasons for the intention, opinion, belief or purpose.

(7) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.

Personal liability of members etc

51. A matter or thing done by the Commission, a member of the Commission or any person acting under the direction of the Commission does not, if the matter or thing was done in good faith for the purposes of executing this or any other law, subject the member or a person so acting personally to any action, liability, claim or demand.

Service of documents on Commission

52.-(1) A document maybe served on the Commission by leaving it at, or by sending it by post to, the office of the Commission.

(2) Nothing in this section affects the operation of any provision of all aw or of the rules of a court authorising a document to be served on the Commission in any other way.

Regulations

53.- (1) The Minister may make regulations prescribing all matters rewired or permitted by this Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) The regulations may make provision for or with respect to the following matters-

(a) fees;

(b) the procedure of the Commission;

the arbitration of disputes under Part 4.

(3) The regulations may require the payment of fees-

(a) by recipients of services provided by the Commission; or

(b) to meet the costs of the arbitration of access disputes under Part 4.

(4) A regulation may create an offence punishable by a penalty not exceeding $200.

SCHEDULE 1
PROVISIONS RELATING TO MEMBERS OF COMMISSION
(Section 6 (9))

Deputy Chairperson and acting Deputy Chairperson

1. The Deputy Chairperson may act as Chairperson-

(a) during a vacancy in the office of Chairperson, whether or not an appointment has previously been made to the office;

(b) during any period, or during all periods, when the chairperson is for any reason unable to perform the functions of the office; or

if the Chairperson considers it not proper or desirable that he or she adjudicate personally on a particular matter.

(2) If subparagraph (1) applies but the Deputy Chairperson is incapable of acting as Chairperson because-

(a) a vacancy exists in the office of the Deputy Chairperson;

(b) the Deputy Chairperson is for any reason unable to perform the functions of Chairperson; or

(c) the Deputy Chairperson considers it not proper or desirable that he or she adjudicate personally on a particular matter, the members may, by resolution, appoint one of their number to act as Chairperson for the period or purpose stated in the resolution.

(3) Anything done by a person purporting to act pursuant to subparagraph (1) or (2) is not invalid on the ground that-

(a) the appointment was ineffective or had ceased to have effect; or

(b) the occasion to act had not risen or had ceased.

Vacancy in office of member

2.-(1) The office of a member becomes vacant if the member-

(a) dies;

(b) completes a term of office and is not re-appointed;

(c) resigns the office by instrument in writing addressed to the Minister;

(d) is removed from office by the Minister under this clause;

(e) is absent from duty, except on leave of absence granted by the Minister, for 14 consecutive days or 28 days in any period of 12 months;

(f) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit;

(g) becomes mentally incapacitated; or

(h) is convicted in the Fiji Islands or elsewhere of an offence which is punishable in the Fiji islands by imprisonment for 12 months or more.

(2) The Minister may remove a member from office for misbehaviour, incompetence, incapacity of failure to comply with paragraph 3.

Disclosure of interests

3. If a member takes part, or is to take part, in the consideration or determination of a matter in which the member has a direct or indirect pecuniary interest, the member-

(a) must disclose the interest in writing to the Minister; and

(b) must not continue to take part, or take part, in the consideration or determination of the matter.

SCHEDULE 2
PROVISIONS RELATING TO PROCEDURE
OF COMMISSION AT MEETINGS
(Section 8)

General Procedure

1. Subject to this Act and the regulations, the procedure for the calling of meetings of the Commission and for the conduct of business at those meetings is as determined by the Commission.

Chairperson to convene meeting

2.-(1) The Chairperson must convene such meetings of the Commission as the Chairperson thinks necessary.

(2) Meetings of the Commission are to be held at such times and places as the Chairperson determines.

Quorum

3. The quorum for a meeting of the Commission is-

(a) if the Commission consists of three members - 2 members; and

(b) if the Commission consists of more than 3 members - 3 members,

one of whom is to be the Chairperson.

Presiding member

4.-(1) The Chairperson is to preside at a meeting of the Commission.

(2) The Chairperson has a deliberative vote and in the event of an equality of votes, has a second or casting vote.

Voting

5. A decision supported by a majority of the votes cast at a meeting of the Commission at which a quorum is present is the decision of the Commission.

Transaction of business outside meetings or by telephone etc

6.-(1) The Commission may, if it thinks fit transact any of its business by the circulation of papers among all the members for the time being, and a resolution in writing approved in writing by a majority of those members is taken to be a decision of the Commission.

(2) The Commission may, if it thinks fit, transact any of its business at a meeting at which members (or some members) participate by telephone, closed-circuit television or other means, but only if any member who speaks on a matter before the meeting can be heard by the other members.

(3) For the purposes of-

(a) the approval of a resolution under subparagraph (1); or

(b) a meeting held in accordance with subparagraph (2),

the Chairperson and each member have the same voting rights as they have at an ordinary meeting of the Commission.

(4) A resolution approved under subparagraph (1) is, subject to the regulations, to be recorded in the minutes of the meetings of the Commission.

(5) Papers may be circulated among members for the purposes of subclause (1) by facsimile or other transmission of the information in the papers.

Minutes

7. The Commission, and any committee appointed by the Commission, must keep minutes of its meetings in proper form.

First meeting

8. The Minister may call the first meeting of the Commission in any manner as the Minister thinks fit.

Passed by the House of Representatives this 15th day of October 1998.
Passed by the Senate this 29th day of October 1998.