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Fiji Sessional Legislation |
GOVERNMENT OF THE REPUBLIC OF FIJI
DECREE NO. 37
POSTS AND TELECOMMUNICATIONS DECREE, 1989
ARRANGEMENT OF SECTIONS
_______
PART I-INTRODUCTORY PROVISIONS
1. Short title and Commencement
PART II-TELECOMMUNICATION SERVICES
2. Interpretation
3. Abolition of the Government's
exclusive privilege regarding telecommunications
4. General duties of the
Minister
5. Licensing etc. of telecommunication systems
6. Exceptions to
section 5
7. Power to licence systems
8. Public telecommunication
systems
9. Telecommunications code
10. Modification of licence
conditions
11. Register of licences and orders
12. Enforcement of licence
conditions
13. Approval of contractors
14. Register of approved
contractors
15. Approval etc. of apparatus
16. Register of approved
apparatus, etc.
17. Information etc. to be marked on or to accompany
telecommunication apparatus
18. Information, etc. to be given in
advertisements
19. Delegation of functions under sections 13 and 15
20.
Power to make test purchases
21. Compulsory purchase of land by
carriers
22. Power to enter land for exploratory purposes
PART III-OTHER FUNCTIONS OF THE MINISTER
23. General functions
24. Publication of information and
advice
25. Investigation of complaints
26. Power to give assistance in
relation to certain proceeding
27. Power to require information etc.
28.
Power to establish advisory councils
29. Grants and loans to promote rural
telecommunications
PART IV-OFFENCES, ETC. RELATING TO TELECOMMUNICATIONS
30. Fraudulent use of telecommunication system.
31.
Improper use of public telecommunication system
32. Modification etc. of
messages
33. Interception and disclosure of messages etc.
34. Interrupting
the business of public telecommunications carrier
35. Tampering with plant of
telecommunication
36. Trespass and wilful obstruction of a telecommunications
officer
37. Detaining or altering a message or revealing its contents
38.
Impeding or delaying messages
39. Fraudulent retention of messages
40.
Forgery of telegrams
41. Fraudulently transmitting messages
42. Assisting
the working of an unlicensed telecommunication and radio-communication
PART V-PROVISIONS RELATING TO RADIO-COMMUNICATION
43. Licensing of radio-communication
44. Fees and
charges for radio-communication licences
45. Approval of radio-communication
apparatus, etc.
46. Powers of Minister as to radio-communication
operators
47. Delegation of functions under sections 43, 45 and 46
48.
Regulations as to radio-communication-general
49. Restriction on dealings in
and custody of certain apparatus
50. Regulations as to radiation of
electro-magnetic energy, etc.
51. Enforcement of electro-magnetic energy
regulations as to use of apparatus
52. Enforcement of regulations as to
sales, etc. by manufacturers and others
53. Regulations with respect to
resistance to interference
54. Radio interference service
55. Misleading
messages and interception and disclosure of messages
56. Deliberate
interference
57. Territorial extent of preceding provisions
58. Onus of
proof-radio-communication
59. Compounding of offences
PART VI-TELECOMMUNICATIONS-MISCELLANEOUS
60. Powers of Government in emergency
61. Power to
require production of messages
62. Regulations-General
63. Entry and
search of premises, etc.
64. Seizure of apparatus and other property used in
committing certain offences under this Decree
65. Forfeiture on
conviction
66. Disposal of apparatus and other properly seized by virtue of
section
67. Admissibility of transcript message in judicial
proceedings
PART VII-TRANSFER OF UNDERTAKING OF DEPARTMENT OF POSTS AND TELECOMMUNICATIONS
68. Interpretation
69. Vesting of property etc. of
Department of Posts and Telecommunications in a company nominated by the
Minister
70. Power of the Minister to override section 69 in case of
difficulty or uncertainty
71. Initial Government holding in the
Company
72. Conversion of certain loans vested in the Company
73.
Government investment in securities of the Company
74. Exercise of the
Minister's functions through nominees
75. Temporary restrictions on Company's
borrowings etc.
76. Liability of Minister in respect of liabilities vesting
in the Company
77. Application of law in relation to offer of shares or
debentures of the Company
PART VIII-POSTAL SERVICES
78. Interpretation
79. Meaning of "in course of
transmission by post" and "delivery to or from a post office"
80. General
duties of the Minister
81. Appointment and duty of the postal
authority
82. General ministerial control and supervision of the postal
authority
83. Power of the Minister to direct the postal authority to do work
for government departments and local authorities
84. Power to make grants and
loans to the postal authority
85. Sole authority to convey etc.
letters
86. Suspension of the sole authority
87. Minister's powers in
regard to the postal authority's charges
88. General classes of acts not
infringing the sole authority
89. No letters to be conveyed except by
post
90. Savings for things done under a licence
91. Establishment of post
offices
92. Postage stamps
93. Stamping machines
94. Rates of
postage
95. Exemptions from postage
96. Liability for payment of
postage
97. Power to withhold unstamped postal article
98. Post office
mark evidence of refusal
99. Official mark to be evidence of postage
100.
Return to sender
101. Registration of postal articles
102. Compulsory
registration of certain postal articles
103. Insurance of postal
articles
104. Parcels post
105. Money orders and money order
regulations
106. Power of remitter to alter name or to recall money
orders
107. Power to provide for issue of postal orders
108. Money order
offices
109. Recovery of money paid to wrong persons
110. Exemptions from
liability in respect of money orders and postal orders
111. Postage stamps
may be used to denote stamp duty
112. Officers to make declaration
113.
Notice of departure of vessels
114. Penalty for refusing to receive mail bag
on board
115. Payment for conveyance of mail bags by non-contract
vessels
116. No payment for conveyance of mail bags already paid for at port
of departure
117. All mail bags and postal articles arriving by vessel to be
delivered to post office by master
118. Declaration to be made by masters of
vessels on arrival of vessels
119. Conveyance of mail bags by coasting
vessels
120. Lockers to be provided by vessels and vehicles under
contract
121. Transmission of certain articles prohibited
122.
Transmission by post of anything indecent, etc., or articles bearing fictitious
stamps prohibited
123. Postal authority may detain prohibited
articles
124. Power to detain postal articles suspected to contain dutiable
goods
125. Penalty for contravention of section 85
126. Penalty for
contravention of sections 121 and 122
127. Fraudulently issuing money orders
or postal orders
128. Money order or postal order to be deemed a valuable
security
129. Unlawfully taking away or opening mail bag sent by vessels or
vehicles employed under postal service
130. Receiver of stolen mail bag or
postal article
131. Fraudulent detention of mail bag or postal
article
132. Criminal diversion of letters from addressee
133. Opening or
delaying postal articles
134. Delaying mail, etc.
135. Prohibition of
placing injurious substances in or against post office letter boxes
136.
Prohibition of affixing placards, notices, etc., on post office letter boxes,
etc.
137. Prohibition of imitation of post office stamps, envelopes, forms
and marks
138. Prohibition of fictitious stamps
139. Prohibition of false
notice as to reception of letters
140. Obstruction of postal officers
141.
Obstructing mail
142. Falsely inducing delivery of letters
143. Evidence
of thing being postal article
144. Provision as to form of
proceedings
145. Description of postal officers of the postal authority in
legal proceedings
146. Penalty for being in unauthorised possession of mail
bags, etc.
147. Article bearing a fraudulent stamp maybe withheld
148.
Removing stamp from postal article
149. Penalty for unlawfully disclosing
contents of postal article
150. Breach of regulations
151. Limitation of
action against officer
152. Exemption from liability for loss, misdelivery,
delay or damage
153. Penalty for offences not specially provided for
154.
Regulations
PART IX-MISCELLANEOUS AND SUPPLEMENTAL
155. Disposal of fines
156. Directions in the interests
of national security etc.
157. Exclusion of liability of the postal
authority, the Company its officers and servants, in relation to posts and
telecommunications
158. Endeavouring to procure the commission of any
offence
159. Prohibitions and restrictions applying to lessees with respect
to telecommunications
160. Contributions by local authorities towards
provision of facilities
161. General restrictions on disclosure of
information
162. Minister's report
163. Offences by bodies
corporate
164. Orders
165. General interpretation
166. Alteration of
public road
167. Amendments, transitional provisions and repeals
168.
Exemption from requirements of notice
SCHEDULE 1-THE TELECOMMUNICATIONS CODE
1. Interpretation of code
2. Agreement required to
confer right to execute works, etc.
3. Agreement required for obstructing
access, etc.
4. Effect of rights and compensation
5. Power to dispense
with the need for required agreement
6. Acquisition of rights in respect of
apparatus already installed
7. Court to fix financial terms where agreement
dispensed with
8. Notices and applications by potential subscribers
9.
Road works
10. Power to fly lines
11. Tidal waters, etc.
12.
Compensation for injurious affection to neighbouring land, etc.
13.
Objections to overhead apparatus
14. Obligation to affix notices to overhead
apparatus
15. Tree lopping
16. Power to require alteration of
apparatus
17. Restriction on right to require the removal of apparatus
18.
Abandonment of apparatus
19. Undertaker's works
20. Notices under
code
21. Application to the State
22. Savings for and exclusion of certain
remedies, etc.
23. Application of code to existing systems
SCHEDULE 2-DECLARATION
Form 1 (Section 112)
Form 2 (Section 118)
SCHEDULE 3-GENERAL TRANSITIONAL PROVISIONS AND SAVINGS
Part I Provisions and savings coming into force on the
Appointed Day
Part II Provisions and Savings coming into force on the
transfer date
SCHEDULE 4-REPEALS
Part I REPEALS COMING INTO FORCE ON THE APPOINTED
DAY
The Telecommunications Act
Part II REPEALS
COMING INTO FORCE ON THE TRANSFER DATE
The Post and Telecommunications Trust Account Act
The Post Office Act
_________
GOVERNMENT OF THE REPUBLIC OF FIJI DECREE NO. 37 OF 1989
_________
POSTS
AND TELECOMMUNICATIONS DECREE, 1989
_________
A DECREE TO CONSOLIDATE AND AMEND THE LAW RELATING TO POSTS AND TELECOMMUNICATIONS
In exercise of the powers vested in me as President and
Commander-in-Chief of the Republic of Fiji, and acting on the advice of the
Prime Minister and Cabinet, I hereby make the following Decree-
PART I-INTRODUCTORY PROVISIONS
Short title and Commencement
1.-(1) This
Decree may be cited as the Posts and Telecommunications Decree, 1989.
(2)
The following provisions of this Decree shall come into force on the appointed
day:-
sections 2 to 4;
Parts 11 to VI;
section 81;
section 110;
section 155 and 156;
section 157(4);
section 158 and 159;
section 161 to 166;
section 167 (in so far as it relates to other provisions of this Decree coming in effect on the appointed day);
Schedule 1 and 2;
Part I of Schedule 3; and
Part I of Schedule 4.
(3) The following
provisions of this Decree shall come into force on the transfer date:-
Part VII;
Part VIII (other than section 81);
section 157 (other than subsection (4));
section 160;
Part II of Schedule 3; and
Part II of Schedule 4;
(4) This section shall
come into force when this Decree is made.
PART II-TELECOMMUNICATION SERVICES
Interpretation
2.-(1) In this
Decree, unless the context otherwise require-
(a) "the appointed day" has the meaning given by section 3 below;
(b) "broadcasting station" means a person transmitting by means of a radio-communication station sounds or visual images or both intended for general reception by the public and "broadcast receiving station" means a radio communication station capable of being used or adapted for the reception only of transmissions of sounds or visual images or both from broadcasting stations;
(c) "carrier" means a person designated to run a public telecommunication system;
(d) "modification" includes addition, alteration and omission and cognate expressions shall be construed accordingly;
(e) "public telecommunication system" has the meaning given by section 8 below;
(f) "radio-communication" means any telecommunication by means of Hertzian waves;
(g) "radio-communication station" means any telecommunication station capable of being used or being adapted for radio-communication, and "radio-communication apparatus" means any apparatus capable of being so used or so adapted and where the context so requires includes a radio-communication station;
(h) "telecommunication apparatus" means apparatus constructed or adapted for use-
(i) in transmitting or receiving anything falling within sub-paragraphs (i) to (iv) of paragraph (j) below which is to be or has been conveyed by means of a telecommunication system; or
(ii) in conveying, for the purposes of such a system, anything falling within those paragraphs;
(i) "telecommunication service" means any of the following -
(i) a service consisting in the conveyance by means of a telecommunication system of anything falling within sub-paragraphs (i) to (iv) of paragraph (j) below;
(ii) a service consisting in the installation, maintenance, adjustment, repair, alteration, moving, removal or replacement of apparatus which is or is to be connected to a telecommunication system; and
(iii) a directory information service, that is to say, a service consisting in the provision by means of a telecommunication system of directory information for the purposes of facilitating the use of a service falling within paragraph (a) above and provided by means of that system;
(j) "telecommunication system" means a system for the conveyance, through the agency of electric, magnetic, electro-magnetic, electro-chemical or electromechanical energy, or by means of fibre optic technology of-
(i) speech, music and other sounds;
(ii) visual images;
(iii) signals serving for the impartation (whether as between persons and persons, things and things or persons and things) of any matter otherwise than in the form of sounds or visual images; or
(iv) signals serving for the actuation or control of machinery or apparatus;
(k) "telecommunications operator" means any person licensed under section 7 below to run a telecommunication system within Fiji;
(l) "telecommunications officer" means any person employed either permanently or temporarily by a carrier in connection with a telecommunication system licensed under section 7 below, or by the Government in connection with the running of a telecommunications;
(m) "telecommunication line" means any wire, cable, tube, pipe or other similar thing which is designed or adapted for use in connection with the running of a telecommunication system, with any casing, coating, tube or pipe enclosing the same and any appliances and apparatus connected therein for the same; and includes any structure, post or other thing in, or, by or from which any telecommunication apparatus is or may be installed, supported, carried or suspended;
(n) "the transfer date" and "the Company" have the meaning given by section 69 below;
(o) "dealer in radio-communication apparatus" means any person carrying on the business of producing, manufacturing, repairing, selling, or distributing radio-communication apparatus;
(p) "message" means any communication sent, received, or made by telecommunication or given to a telecommunication officer to be sent by telecommunication;
(q) "post" when used in reference to telecommunications includes any pole, standard, stay, strut or other above-ground contrivance for installing, carrying, supporting or suspending a telecommunication line;
(r) "signal room" means any room or other enclosed area in which any part of the process of transmitting or receiving radio-communication takes place;
(s) "vessel" means a vessel of any description used in navigation;
(t) "commercial activities in connection with telecommunications" means any of the following that is to say, the provision of telecommunication services, the supply of telecommunication apparatus and the production or acquisition of such apparatus for supply;
(u) "the Minister" means the Minister responsible for Telecommunications; and
(v) "the President" means the Head of State of the Republic of Fiji.
(2) For the
purposes of this Decree, except as provided in section 7(9) below, a
telecommunication system is run by the person who
ultimately controls and
manages it; and, for the avoidance of doubt, where one person controls and
manages a telecommunication system
as agent for another person is that other
person who runs the system.
(3) Subject to subsection (5) below, a telecommunication
system is connected to another telecommunication system for the purposes
of this
Decree if it is being used or is installed for use in conveying anything falling
within paragraph (j)(i) to (iv) of
subsection (1) above which is to be or has been conveyed by means of that other
system.
(4) Subject to subsection (5) below, apparatus is connected to a
telecommunication system for the uses of this Decree if it is being
used or is
installed for use-
(a) in transmitting or receiving anything falling within paragraphs (j)(i) to (iv) of subsection (1) above which is to be or has been conveyed by means of that system; or
(b) in conveying, for the purposes of that system, anything falling within those paragraphs;
and references in this subsection
to anything falling within those paragraphs shall include references to energy
of any kind mentioned
in that subsection.
(5) The connection to a
telecommunication system of any other telecommunication system or any apparatus
shall not be regarded as a
connection for the purposes of this Decree if that
other telecommunication system or that apparatus would not be so connected but
for its connection to another communication system.
(6) In this section,
except subsection (1) above, "convey" includes transmit, switch and receive and
cognate expressions shall be
construed accordingly.
Abolition of the Government's exclusive privilege regarding telecommunications
3.- As from such
day as the Minister may by order appoint (in this Decree referred to as "the
appointed day") the exclusive privilege
of establishing, maintaining and working
telecommunication within Fiji conferred on the Government by section 3 of the
Telecommunications
Act (Cap. 173) shall cease to exist.
General dude of the Minister
4.-(1) The
Minister shall have a duty to exercise the functions assigned to him under Parts
II, III and V of this Decree in the manner
which he considers is best calculated
to secure that there are provided throughout Fiji, save in so far as the
provision thereof
is impracticable or not reasonably practicable, such
telecommunication services as satisfy all reasonable demands for
them.
(2) Subject to subsection (1) above, the Minister shall have a duty
to exercise the said functions in the manner which he considers
is best
calculated-
(a) to promote the interests of consumers, purchasers and other users in Fiji in respect of the prices charged for, and the quality and variety of, telecommunication services provided in Fiji;
(b) to maintain and promote effective competition between persons engaged in commercial activities connected with telecommunications in Fiji; and
(c) to promote efficiency and economy on the part of such persons.
(3) Subsections
(1) and (2) above shall not apply in relation to anything done by the Minister
in the interests of national security
or relations with the government of a
country or territory outside Fiji; and subsection (2) above shall not apply in
relation to
anything done in exercise of functions assigned by section 9(3) or
(8), or 26 below.
Licensing etc. of telecommunication systems
5.-(1) Subject to
the provisions of this section and section 6 below, a person who runs a
telecommunication system within Fiji shall
be guilty of an offence unless he is
authorised to run the system by a licence granted under section 7
below.
(2) Subject to the provisions of this section, a
telecommunications operator shall be guilty of an offence if-
(a) there is connected to the system-
(i) any other telecommunication system; or
(ii) any apparatus,
which is not authorised by his licence to be so connected; or
(b) there are provided by means of the system any telecommunication services which are not authorised by his licence to be so provided.
(3) A person guilty of an
offence under this section shall be liable to a fine not exceeding ten thousand
dollars.
(4) Where the commission by any person of an offence under
this section is due to the act or default of some other person, that other
person shall be guilty of the offence by virtue of this subsection whether or
not proceedings are taken against the first-mentioned
person.
(5) In any
proceedings for an offence under this section it shall be a defence for the
person charged prove that he took all reasonable
steps and exercised all due
diligence to avoid committing the offence.
(6) No proceedings shall be
instituted in respect of an offence under this section except by or on behalf of
the Minister.
Exceptions to section 5
6.-(1) Section
5(1) above is not contravened by the running by a broadcasting station of a
telecommunication system in the case of which
every conveyance made by it is
either-
(a) a transmission, by radio-communication for general reception of sounds, visual images or such signals as are mentioned in section 2(1)(j)(iii) above; or
(b) a conveyance within a single set of premises of sounds, visual images or such, signals which are to be or have been so transmitted.
(2) Section 5(1) above is
not contravened by-
(a) the running of a telecommunication system in the case of which the only agency involved in the conveyance of things thereby conveyed is light and the things thereby conveyed are so conveyed as to be capable of being received or perceived by the eye without assistance;
(b) the running by a person of a telecommunication system which is not connected to another telecommunication system (other than a public telecommunication system or such a telecommunication system as is mentioned in subsection (1) above) and in the case of which all the apparatus comprised therein is situated either-
(i) on a single set of premises in single occupation; or
(ii) in a vehicle, vessel, aircraft or hovercraft or in two or more vehicles, vessels, aircraft or hovercraft mechanically coupled together;
(c) the running of any telecommunication system on any foreign vessel or aircraft;
(d) the running by a person of a telecommunication system which is not connected to another telecommunication system and-
(i) which is comprised of a single repeater radio-communication station, a single fixed radio-communication station and two or more mobile radio-communication stations; and
(ii) all the stations and apparatus comprised therein required to be the subject of licences under section 43 below are so licensed and are being used in compliance with the terms, conditions and limitations of such licence.
Power to license systems
7.-(1) A licence
may be granted by the Minister for the running of any such telecommunication
system as is specified in the licence or
is of a description so specified.
(2) A licence granted under this section shall be in writing
and, unless previously revoked in accordance with any term in that behalf
contained in the licence, shall continue in force for such period may be
specified in or determined by or under the licence.
(3) A licence granted
under this section may be granted either to all persons, to persons of a class
or to a particular person and
in the case of a licence granted to a particular
person, may confer upon that person an exclusive privilege to provide any
service
specified, in any area or all areas of Fiji, and subject to such
conditions, exceptions and other limitations as the Minister sees
fit.
(4) A licence granted under this section may authorise-
(a) the connection to any telecommunication system to which the licence relates of-
(i) any other telecommunication system specified in the licence or of a description so specified; and
(ii) any apparatus so specified or of a description so specified; and
(b) the provision by means of any telecommunication system to which the licence relates to any telecommunication services specified in the licence or of a description so specified.
(5) A licence granted under this
section may include-
(a) such conditions (whether relating to the running of a telecommunication system to which the licence relates or otherwise) as appear to the Minister to be requisite or expedient having regard to the duties imposed on him by section 4 above;
(b) conditions requiring the rendering to the Minister of a payment on the grant of the licence or payments during the currency of the licence or both of such amount or amounts as may be determined by or under the licence; and
(c) conditions requiring any person who is authorised by the licence to run a telecommunication system to furnish to the Minister, in such manner and at such times as he may reasonably require, such documents, accounts, estimates, returns or other information as he may require for the purpose of exercising the functions assigned to him by or under this Part or Parts I or III of this Decree.
(6) Without prejudice to the
generality of paragraph (a) of
subsection (5) above, conditions included by virtue of that paragraph in a
licence granted under this section to a particular
person require that
person-
(a) to comply with any direction given by the Minister as to such matters as are specified in the licence or are of a description so specified;
(b) except in so far as the Minister consents to his doing or not doing them, not to door to do such things as are specified in the licence or are of a description so specified; and
(c) to refer for determination by the Minister such questions arising under the licence as are specified in the licence or are of a description so specified.
(7) A licence granted under this
section otherwise than to a particular person shall be published in such manner
as the Minister considers
appropriate for bringing it to the attention of the
persons for whose benefit it will enure.
(8) Any sums received by the
Minister under this section shall be paid into the Consolidated Fund.
(9)
Where a licence granted under this section to a particular person includes a
provision requiring that person to run a telecommunication
system to which the
licence relates through the agency of some other person, that other person, as
well as the first mentioned person,
shall be taken for the purpose of this
section and the following provisions of this Decree to be authorised by that
licence to run
that system.
(10) Nothing in this section shall be taken
to affect any provision of any other written law, whether or not in force at the
commencement
of this section, which regulates and provides for the licensing of
any broadcasting service provided by a broadcasting station, and
the provisions
of this section shall be in addition to the requirements of that other
law.
(11) Nothing in this section or in any licence granted under this
section shall be taken to affect the provisions of section 43 below,
and the
provisions of this section shall be in addition to and not in substitution for
or in diminution of the provisions of that
section.
(12) Subsections (3)
and (4) of section 8 below shall apply in respect of any licence granted under
this section conferring upon the
telecommunications operator an exclusive
privilege in respect of any telecommunication service as if such licence were a
licence
to which section 8 below applies.
Public telecommunication systems
8.-(1) The
Minister may by order designate as a public telecommunications system any
telecommunication system the running of which is
authorised by a licence to
which this section applies; and any reference in this Decree to a public
telecommunication system is a
reference to a telecommunication system which is
so designated and the running of which is so authorised.
(2) This section
applies to any licence granted under section 7 above to a particular person
which includes conditions requiring that
person-
(a) to provide such telecommunication services as are specified in the licence or are of a description so specified;
(b) to connect to any telecommunication system to which the licence relates, or permit the connection to any such system of, such other telecommunication systems and such apparatus as are specified in the licence or are of a description so specified, either without charge or subject to reasonable charges or subject to charges to be determined in accordance with the method specified by the Minister in the licence (whichever the licence may specify);
(c) to permit the provision by means of any telecommunication system to which the licence relates of such services as are specified in the licence or are of a description so specified;
(d) not to show undue preference to, or to exercise undue discrimination against, particular persons or persons of any class or description (including, in particular, persons in rural areas) as respects any service provided, connection made or permission given in pursuance of such conditions made or permission given in pursuance of such conditions as are mentioned in the foregoing paragraphs (whether in respect of the charges or other terms or conditions applied or otherwise);
(e) to publish, in such manner and at such times as are specified in the licence, a notice specifying, or, if the method is not specified in the licence, specifying the method that is to be adopted for determining, the charges and other terms and conditions that are to be applicable to such services so provided, such connections so made and such permissions so given as are specified in the licence or are of a description so specified;
(f) not to make any charge or to give a rebate in respect of any service that is interrupted where such interruption exceeds 5 days from the time that the operator had knowledge of the interruption.
(3) Subject to section 168
below, before granting a licence to which this section applies, the Minister
shall give notice-
(a) stating that he proposes to grant the licence and setting out its effect;
(b) stating the reasons why he proposes to grant the licence; and
(c) specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed licence may be made,
and shall consider any representations
or objections which are duly made and not withdrawn.
(4) A notice under
subsection (3) above shall be given by publication in the
Fiji Republic Gazette and in such
other manner as the Minister considers appropriate for bringing the matters to
which the notice relates to the attention
of persons likely to be affected by
them.
(5) For the avoidance of doubt, it shall not be an undue
discrimination within the meaning of subsection
(2)(d) above to refuse to supply
telecommunication services to any applicant who-
(a) subject to subsection (6) below, has failed to make payment of any amount which is due and owing to the person who would otherwise be required by the condition to provide the service, make the connection or give the permission;
(b) is indebted to the person who would otherwise be required by the condition to provide the service, make the connection or give the permission to an amount greater than two hundred dollars;
(c) is living in the same abode as such a debtor as is referred to in (a) or (b) above; or
(d) is not lawfully entitled to be or to remain in occupation of the premises where he is applying for the service to be provided, the connection to be made or the permission to be given.
(6) For the purposes of paragraph
(a) of subsection (5) above only, an
applicant shall not be regarded as having failed to make payment of any amount
which is due and
owing to the person who would otherwise be required by the
condition to provide the service, make the connection or give the permission,
if
the amount is in respect of any credit transaction, until he has been served
with a statement of account in respect of any amount
owed and the period
specified in the statement, not being less than seven days after service of the
statement, in which payment of
the amount should be made, or, if no such period
is specified, a period of thirty days after service of the statement, has
elapsed,
and the applicant has failed to make such payment.
(7) For the
purposes of subsection (6) above, a statement of account shall be deemed to have
been served on an applicant if it is
delivered to the last address at which he
has advised the person who would otherwise be required to provide the service,
make the
connection or give the permission, to deliver statements of account,
or, if no such advice has been given, to his last known address.
Telecommunication code
9.-(1) Subject to the
following provisions of this section, the code (to be known as "the
telecommunications code") which is contained
in Schedule 1 to this Decree shall
have effect where it is applied to a particular person by a licence granted by
the Minister under
section 7 above authorising that person to run a
telecommunication system.
(2) The telecommunications code shall not be
applied to a person authorised by a licence under section 7 above to run a
telecommunication
system-
(a) unless that licence is a licence to which section 8 above applies; or
(b) unless it appears to the Minister-
(i) that the running of the system will benefit the public; and
(ii) that it is not practicable for the system to be run without the application of that code to that person.
(3)
Where the telecommunication code is applied to any person by a licence under
section 7 above it shall have effect subject to such
exceptions and conditions
as may be included in the licence for the purpose of qualifying the rights
exercisable by that person by
virtue of the code.
(4) Without prejudice
to the generality of subsection (3) above, the exceptions and conditions
contained in the licence shall include
such exceptions and conditions as appear
to the Minister to be requisite or expedient for the purpose of
securing-
(a) that the physical environment is protected and, in particular, that the natural beauty and amenity of the country is conserved;
(b) that there is no greater damage to streets or interference with traffic than is reasonably necessary;
(c) that funds are available for meeting any liabilities which may arise from the exercise of rights conferred by or in accordance with the code,
and any
condition falling within this subsection may impose on the person to whom the
code is applied a requirement to comply with
directions given in a manner
specified in the condition and by person so specified or of a description so
specified.
(5) A licence under section 7 above which applies the
telecommunications code to any person in relation to any part or locality of
Fiji shall include a condition requiring that person to cause copies of-
(a) the exceptions and conditions subject to which the telecommunications code has effect as so applied; and
(b) every direction given in a manner specified in any such condition by a person so specified or of a description so specified,
to be open for inspection by
members of the public free of charge at such premises in that part or locality
as are specified in the
licence or are of a description so specified.
(6)
Subject to section 168 below, before granting under section 7 above a licence
which applies the communications code to a particular
person in relation to any
part or locality of Fiji the Minister shall publish a notice-
(a) stating that he proposes to apply the code to that person in relation to that part or locality and setting out the effect of the exceptions and conditions subject to which he proposes that the code should have effect as so applied;
(b) stating the reasons why he proposes to apply the code to that person in relation to that part or locality and why he proposes that the code as so applied should have effect subject to those exceptions and conditions; and
(c) specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed application of the code to that person in relation to that part of locality and with respect to the proposed exceptions and conditions may be made,
and shall reconsider his proposals in
the light of any representations or objections which are duly made and not
withdrawn.
(7) If the Minister, on reconsidering in pursuance of
subsection (6) above any proposals specified notice under that subsection,
grants
a licence under section 7 above applying the telecommunications code to
any person in relation to any part or locality of Fiji, he
shall on granting
that licence publish a further notice-
(a) stating that the code has been applied to that person in relation to that part or locality and setting out the effect of the exceptions and conditions subject to which the code has effect as so applied; and
(b) stating the reasons why the code has been applied to that person in relation to that part or locality and why the code as so applied has effect subject to those exceptions and conditions.
(8) Where the Minister has granted
a licence under section 7 above which applies the telecommunication code to a
particular person
in relation to any part or locality of Fiji, he may-
(a) with the consent of that person; or
(b) if it appears to him requisite or expedient to do so for the purpose mentioned in subsection (4) above,
modify the exceptions and conditions
subject to which the code has effect as so applied.
(9) Before modifying
the exceptions and conditions subject to which the telecommunications code has
effect as applied to any person
in relation to any part or locality of Fiji by a
licence granted under section 7 above, the Minister shall publish a
notice-
(a) stating that he proposes to make the modifications and setting out their effect;
(b) stating the reasons why he proposes to make the modifications; and
(c) specifying the time (not being less than 28 days from the date of publication of this notice) within which representations or objections with respect to the proposed modifications may be made, and shall reconsider his proposals in the light of any representations or objections which are duly made and not withdrawn.
(10) If the Minister, on
reconsidering in pursuance of subsection (9) above any proposals specified in a
notice under that subsection,
modifies the exceptions and conditions subject to
which the telecommunications code has effect as applied to any person in
relation
to any part or locality of Fiji by a licence granted under section 7
above, he shall on making the modification publish a further
notice-
(a) stating that the modifications have been made and setting out their effect; and
(b) stating the reasons why the modifications have been made.
(11) A notice
under this section shall be published in the
Fiji Republic Gazette and in such
other manner as the Minister considers appropriate for bringing the matters to
which the notice relates to the attention
of persons likely to be affected by
them.
Modification of licence conditions
10.-(1) Subject
to the following provisions of this section, the Minister may modify the
conditions of a licence granted under section
7 above.
(2) Before making
modifications under this section, the Minister shall give notice-
(a) stating that he proposes to make the modifications and setting out the effects;
(b) stating the reasons why he proposes to make the modifications; and
(c) specifying the time (not being less than 28 days from the date of publications of the notice) within which representations or objections with respect to the proposed modifications may be made,
and shall consider any representations
or objections which are duly made and not withdrawn.
(3) A notice under
subsection (2) above shall be given by publication in such manner as the
Minister considers appropriate for the
purpose of bringing the matters to which
the notice relates to the attention of persons likely to be affected by them, in
case of
a licence granted to a particular person, by sending a copy of the
notice to that person, and in addition, in the case of a licence
to which
section 8 above applies by publications in the
Fiji Republic Gazette.
(4)
Subject to subsection (5) below, in the ease of a licence granted to a
particular person the Minister shall not make the modifications
except with the
consent of that person and, in the case of a licence granted to all persons or
to person of a class, the Minister
shall not make the modifications unless
either-
(a) no representations or objections are duly made by persons authorised by that licence to run a telecommunication system; or
(b) any representations or objection duly made by such persons or withdrawn.
(5)
Where a notice given by the Minister under subsection (2) above specifies that
he proposes to make modifications to remedy or
prevent a matter or matters which
operate or are expected to operate against the public interest and which relates
or relate to the
provision of telecommunication services or the supply of
telecommunication apparatus by a person or persons of a class authorised
by a
licence under section 7 above to run a telecommunication system; then
notwithstanding that in the case of a particular person,
that person does not
consent or that representations or objections made by persons authorised by that
licence to run telecommunications
systems are not withdrawn, the Minister may,
after considering such representations and objections, if he is satisfied that
the matter
or matters specified operate or will operate against the public
interest and can be remedied or prevented by modifications proposed,
modify the
conditions of a licence.
(6) The Minister shall not modify the conditions
of a licence under subsection (4) or (5) above if it appears to him to be
requisite
or expedient not to do so in the interests of national security or
relations with the government of a country or territory outside
Fiji.
(7)
Where the Minister modifies the conditions of a licence under subsection (5)
above, he shall within 14 days thereafter publish
in accordance with subsection
(8) below a report setting out-
(a) his conclusions in respect the matter or matters specified in his notice referred to in subsection (5) above together with an account of his reasons for those conclusions as is in his opinion is expedient for facilitating proper understanding of those conclusions;
(b) the effects adverse to the public interest which that matter or those matters have or were expected to have; and
(c) how those effects are to be remedied or prevented by the modifications made.
(8) A copy of a report under subsection
(7) above-
(a) subject to subsection (9) below, shall be published by the Minister in such manner as he considers appropriate for bringing the report to the attention of persons likely to be affected by it; and
(b). shall be sent by the Minister, in the case of a licence granted to a particular person, to that person.
(9) If it appears to the Minister that
the publication of any matter in such a report would be against the public
interest or the
commercial interests of any person, he may exclude such matter
from the report as published under subsection .(8) above.
(10) Nothing in
this section shall be taken to prevent the Minister from specifying in any
licence how any condition or conditions
may be modified by him under the
provisions of the licence, and from making any modification accordingly.
Register of licences and orders
11.-(1) The
Minister shall keep a register of licences granted under section 7 above and
notifications issued under section 12 below
at such premises and in such form as
he may determine.
(2) Subject to any decision made under subsection (3)
below, the Minister shall cause to be entered in the register the provisions
of-
(a) every licence granted under section 7 above and every modification or revocation of and every direction or consent given or determination made in respect of or under, such a licence; and
(b) every determination made by the Minister that he is satisfied that a contravention or apprehended contravention of a licence is of a trivial nature.
(3) If it
appears to the Minister that the entry of any provision in the register would be
against the public interest or the commercial
interest of any person, he may
decide not to enter that provision in the register.
(4) The register
shall be open to public inspection during such hours and subject to payment of
such fee, if any, as may be prescribed
by order made by the Minister.
(5)
Any person may, on payment of such fee as maybe prescribed by an order so made,
require the Minister to supply to him a copy of
or extract from any part of the
register, certified by the Minister to be a true copy or extract.
(6) Any
sums received by the Minister under this section shall be paid into the
Consolidated Fund.
(7) The functions conferred on the Minister by
subsection (5) above may be exercised by any Public officer appointed for such
purpose.
Enforcement of licence conditions
12.-(1) Where the
Minister-
(a) is satisfied that a telecommunications operator is contravening, or has contravened or is likely again to contravene any of the conditions of his licence and that the contravention or apprehended contravention is not of a trivial nature; and
(b) notifies the telecommunications operator in writing that he is so satisfied, specifying the condition and the acts or omissions which, in his opinion, constitute or would constitute contraventions of it;
(c) requires the telecommunications operator to remedy the contravention in such period (not being less than 28 days) as the Minister may specify in the notification,
then, if the telecommunications
operator fails to remedy the contravention within that period or show good
reason why he should not
do so, his failure shall be deemed to be a breach of a
duty owed to any person who may be affected by his failure and shall be treated
as if it were a tort committed against, and shall be actionable at the suit of,
any person who is caused loss or damage by such failure
and he shall be liable
to pay to such person such amount of compensation therefor as the court may
determine.
(2) The said liability shall not be capable of being removed,
reduced or in anyway modified by any agreement entered into between
the
telecommunications operator and the person affected, or any person acting on
behalf of either of them, before the expiration
of the period so
specified.
(3) In any proceedings brought against any person in pursuance
of subsection (1) above, it shall be a defence for him to prove that
he took all
reasonable steps and used all due diligence to remedy the contravention within
the period specified.
(4) Where a duty is deemed by subsection (1) above
to be owed to any person, any act which by inducing a telecommunications
operator
to fail to remedy the contravention in the time specified or
interfering with the remedying of the contravention in the time specified,
causes a person to sustain loss or damage and which is done wholly or partly for
the purposes of achieving the result, shall be actionable
at the suit or
instance of that person in the same way as a failure to remedy a contravention
is actionable under subsection (1)
above.
(5) Without prejudice to any
right which any person may have by virtue of subsection (1) above to bring
proceedings in respect of
any failure to comply with a notice issued under
subsection (1) above, compliance with any such notice shall be enforceable by
civil
proceedings by the Minister for an injunction or any other appropriate
relief.
(6) Wherein any civil proceedings brought against a carrier by
the Minister under subsection (5) above, the court is of opinion that
there has
been a contravention of any of the conditions of the licence, which
contravention is not of a trivial nature and that there
is or was no good reason
for the carrier not remedying the contravention in the manner and within the
period specified in the notification,
the court shall, on the application of the
Minister, in addition to any injunction or other appropriate relief it may
grant, require
the carrier to pay to the Minister a penalty not exceeding one
hundred thousand dollars.
(7) In this section-
"contravention" in relation to any condition of a licence, includes any failure to comply with that condition and
"contravene" shall be construed accordingly.
(8) References in this section to
conditions of a licence do not include references to conditions relating to the
application of the
telecommunications code.
Approval of contractors
13.-(1) Where
licences granted under section 7 above include provisions which are framed by
reference to the carrying out of relevant
operations by persons for the time
being approved under this section then, for the purposes of those provisions,
persons may be approved
under this section in relation to such operations by the
Minister.
(2) A person applying for an approval under this section maybe
required by the Minister to comply with such requirements as the Minister
may
think appropriate; and those requirements may include a requirement to satisfy
some other person with respect to any matter.
(3) An approval under this
section may apply either to a particular person or to persons of a description
specified in the approval,
and may so apply either in relation to particular
relevant operations or in relation to relevant operations of a description so
specified.
(4) An approval under this section may specify conditions
which must be complied with if the approval is to apply, for any purposes
specified in the approval, to any person who is so specified or is of a
description so specified; and any such condition may impose
on the person to
whom the approval is given a requirement from time to time to satisfy any person
specified by the Minister with
respect to any matter.
(5) Nothing in this
section shall preclude a person (not being the Minister) by whom any matter
falls to be determined for the purposes
of any requirement imposed in pursuance
of subsection (2) or (4) above from charging any fee in respect of the carrying
out of any
test or other assessment made by him.
(6) Any power conferred
by this section to give an approval includes power to vary or withdraw an
approval given in exercise of that
power.
(7) The Minister may be [sic]
order provide for the charging of fees in respect of the exercise of any
functions conferred by or under
this section.
(8) Any sums received by
the Minister under this section shall be paid into the Consolidated Fund.
(9) In this section "relevant operations" means the
installations, maintenance, adjustment, repair, alteration, moving, removal or
replacement of apparatus which is or is to be connected to any telecommunication
system to which a licence under section 7 above
relates.
Register of approved contractors
14.-(1) The
Minister shall keep a register of approvals given under section 13 above at such
premises and in such form as he may determine.
(2) The Minister shall
cause particulars of every such approval, and of every variation or withdrawal
of such an approval, to be entered
in the register.
(3) Subsections (4)
to (7) of section 11 above shall apply for the purposes of this section as they
apply for the purposes of that
section.
Approval etc. of apparatus
15.-(1) Where
licences granted under section 7 above include provisions which are framed by
reference to apparatus for the time being
approved under this section for
connection to telecommunication systems to which the licences relate, then, for
the purposes of those
provisions, apparatus any be approved for connection to
those systems by the Minister.
(2) A person applying for an approval
under this section may be required by the Minister to comply with such
requirements as the Minister
may think appropriate; and those requirements may
include a requirement to satisfy some other person with respect to any
matter.
(3) An approval under this section may apply either to particular
apparatus or to any apparatus of a description specified in the
approval, an
[sic] may so apply either for the purposes of a particular telecommunication
system or for the purposes of any telecommunication
system of a description so
specified.
(4) An approval under his [sic] section may specify conditions
which must be complied with if the approval is to apply, for any purposes
specified in the approval, to any apparatus which is so specified or is of a
description so specified, and any such condition may
impose on the person to
whom the approval is given a requirement from time to time to satisfy any person
with respect to any matter.
(5) Nothing in this section shall preclude a
person (not being the Minister) by whom any matter falls to be determined for
the purposes
of any requirement imposed in pursuance of subsection (2) or (4)
above from charging any fee in respect of the carrying out of any
test or other
assessment made by him.
(6) Standards to which apparatus of a description
specified in the designation must conform if it is to be approved for connection
to a telecommunication system so specified or of a description so specified
maybe designated by the Minister; and a standard so designated
may apply subject
to such exceptions as may be determined by or under the designation.
(7)
A designation under this section may specify conditions which must be complied
with if any apparatus of a description specified
in the designation is to be
regarded, for any purposes so specified, as conforming to the standard to which
the designation relates.
(8) Before designating a standard under this
section, the Minister shall give notice-
(a) stating that he proposes to make the designations and setting out its effect;
(b) stating any conditions which he proposes to specify in the designation; and
(c) specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed designation may be made,
and shall consider any representations
or objections which are duly made and not withdrawn.
(9) A notice under
subsection (8) above shall be given by sending a copy of the notice to the
person running the system and such other
persons (if any) as the Minister
considers appropriate.
(10) Any power conferred by this section to give
an approval or designate a standard includes power to vary or withdraw an
approval
given or designation made in the exercise of that power.
(11)
The Minister may by order provide for the charging of fees in respect of the
exercise of any functions conferred by or under
this section.
(12) Any
sums received by the Minister under this section shall be paid into the
Consolidated Fund.
(13) Any person who connects to any telecommunications
system referred to subsection (1) above, any apparatus which is of, or is
similar
to, a type which under the provisions of the licence in respect a t
telecommunication system, must be approved under this section
but is not so
approved, shall be guilty of an offence and shall be liable upon conviction in
the case of apparatus being a telephone
to a fine not exceeding three hundred
dollars and in the case of all other apparatus, not being a telephone, to a fine
not exceeding
three thousand dollars:
(14) For the purposes of this
section, "apparatus" includes a meter or any other system or apparatus
constructed or adapted for use
in ascertaining the extent of telecommunication
services provided by means of a telecommunication system.
Register of approved apparatus, etc.
16.-(1) The
Minister shall keep a register of approvals given and designations made under
section 15 above at such premises and in such
form as he may
determine.
(2) Subject to subsection (3) below, the Minister shall cause
particulars of every such approval or designation, and of every variation
or
withdrawal of such an approval or designation, to be entered in the
register.
(3) Subsections (3) to (7) of section 11 above shall apply for
the purposes of this section as they apply or the purposes of that
section.
Information etc. to be marked on or to accompany telecommunication apparatus
17.-(1) Where it
appears to the Minister expedient that any description of telecommunications
apparatus should be marked with or accompanied
by any information or instruction
relating to the apparatus or its connection or use, the Minister may by order
impose requirements
for securing that apparatus of that description is so marked
or accompanied, and regulate or prohibit the supply of any such apparatus
with
respect to which the requirements are not complied with and the requirements may
extend to the form and manner in which the
information or instruction is to be
given.
(2) Where an order under this section is in force with respect to
telecommunication apparatus of any description, any person who,
in the course of
any trade or business, supplies or offers to supply telecommunication apparatus
of that description in contravention
of the order shall, subject to sub-section
(3) below be guilty of an offence and liable to a fine not exceeding three
thousand dollars.
(3) Subsection (4) to (6) of section 5 above shall
apply for the purposes of this section as they apply for the purposes of that
section.
(4) An order under this section may, in the case of
telecommunication apparatus supplied in circumstances where the information or
instruction required by the order would not be conveyed until after delivery,
require the whole or part thereof to be also displayed
near the
apparatus.
(5) For the purposes of this section a person exposing
telecommunication apparatus for supply or having telecommunication apparatus
in
his possession for supply shall be deemed to offer to supply it.
Information, etc. to be given in advertisements
18.-(1) Where it
appears to the Minister expedient that any description of advertisements of
telecommunication apparatus should contain
or refer to any information relating
to the apparatus or its connection or use, the Minister may by order impose
requirements as
to the inclusion of that information, or an indication of the
means by which it may be obtained, in advertisements of that
description.
(2) Where an advertisement of any telecommunication
apparatus to be supplied in the course of any trade or business fails to comply
with any requirement imposed under this section, any person who publishes the
advertisement shall, subject to subsections (3) and
(4) below, be guilty of an
offence and liable to a fine not exceeding one thousand dollars.
(3)
Subsections (4) to (6) of section 5 above shall apply for the purposes of this
section as they apply for the purposes of that
section.
(4) In any
proceedings for an offence under this section it shall be a defence for the
person charged to prove that he is a person
whose business it is to publish or
arrange for the publication of advertisements and that he received the
advertisement for publication
in the ordinary course of business and did not
know and had no reason to suspect that its publication would amount to an
offence
under this section.
(5) An order under this section may specify
the form and manner in which any information or indication required by the order
is to
be included in advertisements of any description.
(6) In this
section "advertisement" includes a catalogue, a circular and a price
list.
Delegation of functions under sections 13 and 15
19.-(1) The
functions conferred on the Minister by sections 13 and 15 above (other than the
powers to make orders) shall be exercisable
by any person appointed by the
Minister for the purpose to such extent and subject to such conditions as may be
specified in the
appointment; and an appointment under this section may
authorise the person appointed to retain, any fees received by him.
(2)
Before appointing any person under this section, the Minister shall consult with
the persons running the telecommunication systems
concerned, or with such
organisations as appear to the Minister to be representative of those
persons.
Power to make test purchases
20.-(1)
-The-Minister or the trade measurement authority shall have power to purchase
telecommunication apparatus, and to authorise any
of his officers to purchase
telecommunication apparatus on his behalf, for the purpose of ascertaining
whether sections 17 and 18
above and orders made under those sections (in this
section referred to as "the relevant provisions") are being complied
with.
(2) The Minister and the trade measurement authority shall have
power to enforce the relevant provisions.
(3) For the purposes of this
section, "the trade measurement authority" means, unless the Minister by order
otherwise specifies, the
Chief Inspector of Trade Measurement.
Compulsory purchase of land by carriers
21.-(1) Subject
to subsection (2) below, the Minister may authorise a carrier to acquire
compulsorily any land in Fiji which is required
by the carrier for, or in
connection with, the establishment or running of the carrier's telecommunication
system or as to which
it can reasonably be foreseen that it will be so required;
and the State Acquisition of Lands Act (Cap. 135) shall apply to any compulsory
acquisition under this section and, for the purposes of that Act, the purposes
for which the carrier requires the land shall be treated
as being public
purposes.
(2) No order shall be made authorising a compulsory acquisition
by a carrier except with the consent of the Minister; and such consent
shall be
given only where the Minister is satisfied that the land cannot be acquired by
agreement
(3) The power of acquiring land compulsorily under this section
includes power to acquire any other right over land by the creation
of a new
right.
(4) Where a carrier has acquired any land under this section, he
shall not dispose of that land or of any interest or right in or
over it except
with the consent of the Minister.
Power to enter land for exploratory purposes
22.-(1) A person
nominated by a carrier and duly authorised in writing by the Minister may, at
any reasonable time, in connection with
any works authorised by or under this
Decree enter upon and survey and take levels of any State, native or private
land or any part
thereof other than any land covered by buildings or used as a
garden or pleasure ground, for the purpose of ascertaining whether
the land
would be suitable for use or by the carrier for, or in connection with, the
establishment or running of the carrier's system:
Provided that, before
the exercise of the power conferred by the provisions of this section, notice of
the intention of the carrier,
shall be served on the owner or owners, the
occupier or occupiers and any other interested party at least 28 clear days
before the
exercise of such power.
(2) In the exercise of the powers
given by the provisions of this section, the carrier, shall not be deemed to
acquire any right other
than that of user only in or over the soil of any land
through, over or under which, the carrier causes to be carried out the survey
and the taking of levels and should in the exercise of the power conferred by
this section, any damage be caused to land or to chattels,
the carrier shall
give to any person, who has an interest in such land or chattels suffering loss
thereby, such reasonable compensation
as may be agreed or in the case of
difference as may be determined by a court of competent jurisdiction.
(3)
For the purposes of subsection (1), a notice shall be taken to have been served
on the owners of any native land if it has been
served on the person who is
registered as the head of the mataqali, or other Fijian land owning unit, which
is registered as being
the native owner of such land.
PART III-OTHER FUNCTIONS OF THE MINISTER
General functions
23.-(1) It shall be
the duty of the Minister, so far as it appears to him practicable, from time to
time to keep under review the carrying
on both within and outside Fiji of
activities connected with telecommunications.
(2) It shall also be the
duty of the Minister, so far as it appears to him practicable, from time to time
to collect information with
respect to commercial activities connected with
telecommunications carried on in Fiji and the persons by whom they are carried
on,
with a view to his becoming aware of and ascertaining the circumstances
relating to, matters with respect to which his functions
are
exercisable.
Publication of information and advice
24.-(1) The
Minister may arrange for the publication, in such form and in such manner as he
may consider appropriate, of such information
and advice as it may appear to him
to be expedient to give to consumers, purchasers and other users of
telecommunication services
or telecommunication apparatus in Fiji.
(2) In
arranging for the publication of any such information or advice, the Minister
shall have regard to the need for excluding,
so far as that is
practicable-
(a) any matter which relates to the private affairs of an individual, where the publication of that matter would or might, in the opinion of the Minister, seriously and prejudicially affect the interest of that individual; and
(b) any matter which relates specifically to the affairs of a particular body of persons, whether corporate or unincorporated, where publication of that matter would or might, in the opinion of the Minister, seriously and prejudicially affect the interest of that body.
(3) Without prejudice to the exercise of
his powers under subsection (1) of this section, it shall be the duty of the
Minister to
encourage relevant associations to prepare, and to disseminate to
their members, codes of practice for guidance in safeguarding and
promoting the
interests of consumers, purchasers and other users of telecommunication services
or telecommunication apparatus in
Fiji.
(4) In this section "relevant
association" means any association (whether incorporated or not) whose
membership consists wholly or
mainly of persons engaged in the provision of
telecommunication services apparatus or the supply of telecommunication
apparatus or
of persons employed by or representing persons so engaged and whose
objects or activities include the promotion of the interests
of persons so
engaged.
Investigation of complaints
25.-(1) It shall
be the duty of the Minister to consider any matter which-
(a) relates to telecommunication services provided or telecommunication apparatus supplied in Fiji; and
(b) is the subject of a representation (other than one appearing to the Minister to be frivolous) made to the Minister by or on behalf of a person appearing to the Minister to have an interest in that matter.
(2) Where any matter considered
by the Minister under subsection (1) above is one in respect of which any of his
functions is exercisable,
the Minister shall, if he is required to do so or if
he thinks fit, exercise that function with respect to that matter.
Power to give assistance in relation to certain proceedings
26.-(1) Where, in
relation to any proceedings or prospective proceedings concerning the
telecommunications code, any actual or prospective
party to the proceedings
(other than a carrier) applies to the Minister for assistance under this
section, the Minister may grant
the application if he thinks fit to do
so-
(a) .on the ground that the case raises a question of principle; or
(b) on the ground that it is unreasonable, having regard to the complexity of the case or to any other matter, to expect the applicant to deal with the case without any assistance under this section; or
(c) by reason of any other special consideration.
(2) Assistance by the Minister
under this section may include-
(a) giving advice;
(b) procuring or attempting to procure the settlement of the matter in dispute;
(c) arranging for the giving of advice or assistance by the Attorney-General;
(d) arranging for representation by the Attorney-General including such assistance as is usually given by a barrister and solicitor in the steps preliminary or incidental to any proceedings, or in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings;
(e) any other form of assistance which the Minister may consider appropriate, but paragraph (d) above shall not affect the law and practice regulating the descriptions of persons who may appear in, conduct, defend and address the court in, any proceedings.
(3) In so far as expenses are
incurred by the Minister in providing the applicant with assistance under this
section, the recovery
of those expenses (as taxed or assessed in such manner as
may be prescribed by rules of court) shall constitute a first charge for
the
benefit of the Minister-
(a) on any costs or expenses which (whether by virtue of a judgment or order of a court or an agreement or otherwise) are payable to the applicant by any other person in respect of the matter in connection with which the assistance is given; and
(b) so far as relates to any costs or expenses, on his rights under any compromise or settlement arrived at in connection with that matter to avoid or bring to an end any proceedings.
(4) Any expenses incurred by the
Minister in providing assistance under this section shall be paid cut of public
funds; and any sums
received by the Minister by virtue of any charge conferred
by subsection (3) above shall be paid into the Consolidated Fund.
Power to require information etc.
27.-(1) The
Minister may, for any relevant purpose, by notice in writing signed by
him-
(a) require any person to produce, at a time and place specified in the notice, to the Minister or to any person appointed by him for the purpose, any documents which are specified or described in the notice and are in that person's custody or under his control; or
(b) require any person carrying on any business to keep such records and furnish to the Minister copies of such records and such estimates, returns or other information as may be specified or described in the notice, and specify the time, the manner and the form in which any such estimates, returns or information are to be furnished,
but no person shall be compelled
for any such purpose to produce any documents which he could not be compelled to
produce in civil
proceedings before the court or, in complying with any
requirements for the furnishing of information, to give any information which
he
could not be compelled to give in evidence in such proceedings.
(2) A
person who refuses or, without reasonable excuse, fails to do anything duly
required of him by a notice under subsection (1)
above shall be guilty of an
offence and liable on conviction to imprisonment for a term not exceeding one
year or to a fine not exceeding
five thousand dollars or to both such
imprisonment and fine.
(3) A person who-
(a) intentionally alters, suppresses or destroys any document which he has been required by any such notice to produce; or
(b) in furnishing any estimate, return or other information required of him under any such notice, makes any statement which he knows to be false in a material particular, or recklessly makes any statement which is false in a material particular,
shall be guilty of an
offence.
(4) A person guilty of an offence under subsection (3) above
shall be liable to such penalties as are specified in subsection (2)
above.
(5) If a person makes default in complying with a notice under
subsection (1) of this section, the court may, on the application of
the
Minister, make such order as the court thinks fit for requiring the default to
be made good; and any such order may provide that
all the costs or expenses of
an incidental to the application shall be borne by the person in default or by
any officers of a body
corporate or other association who are responsible for
its default.
(6) In this section-
"relevant purpose" means any purpose connected with-
(a) the investigation of any offence under section 5, 17 or 18 above or any proceedings for any such offence; or
(b) the exercise of the Minister's functions under section 12 or 25 above.
Power to establish advisory councils
28.-(1) The
Minister shall, as soon as practicable after the appointed day, establish
advisory councils for matters affecting telecommunications
in Fiji or any part
thereof; and each advisory council so established shall consist of such members
as he may from time to time appoint.
(2) In establishing a council under
subsection (1) above, the Minister shall have regard to the desirability of
having members who
are familiar with the special requirements and circumstances
of the part of Fiji concerned (including, in particular, the special
requirements and circumstances of consumers and purchasers and other users in
that part of telecommunication services and telecommunication
apparatus).
(3) It shall be the duty of an advisory council established
under this section to advise the Minister on any matter-
(a) in respect of which any of the Minister's functions in respect of telecommunications is exercisable; and
(b) which is referred to it by the Minister or is a matter on which it considers it should offer its advice.
(4) Each of the advisory councils
established under this section shall, as soon as practicable after the end of
the year in which
the transfer date occurs and of each subsequent calendar year,
make to the Minister a report on its activities during that year.
Grants and loans to promote rural telecommunications
29. The Minister
responsible for finance may, at the request of the Minister, make grants or
loans-
(a) to carriers for the purposes of establishing, developing, working and maintaining any telecommunications system in a rural area or rural areas; or
(b) for defraying or contributing towards any expenses or losses incurred by a carrier in respect of such matters.
PART IV-OFFENCES, ETC. RELATING TO TELECOMMUNICATIONS
Fraudulent use of telecommunication system
30. A person who
dishonestly obtains a service provided by means of a telecommunication system
licensed under section 7 above with intent
to avoid payment of any charge
applicable to the provision of that service shall be guilty of an offence and
liable to imprisonment
for a term not exceeding one year or to a fine not
exceeding one thousand dollars or to both such imprisonment and fine.
Improper use of public telecommunication system
31. A person
who-
(a) sends, by means of a public telecommunication system, a message or other matter that is grossly offensive or of an indecent, obscene or menacing character;
(b) sends by those means, for the purpose of causing annoyance, inconvenience or needless anxiety to another, a message that he knows to be false; or
(c) persistently makes use for either such purpose of a public telecommunication system, shall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding three months or to a fine not exceeding five hundred dollars or to both such imprisonment and fine.
Modification etc. of messages
32.-(1) A person
engaged in the running of a public telecommunication system who otherwise than
in the course of his duty intentionally
modifies or interferes with the contents
of a message sent by means of that system shall be guilty of an
offence.
(2) A person guilty of an offence under subsection (1) above
shall be liable to imprisonment for a term not exceeding three years
or to a
fine not exceeding three thousand dollars or to both such imprisonment and
fine.
Interception and disclosure of messages etc.
33.-(1) A person
engaged in the running of a public telecommunication system who otherwise than
in the course of his duty-
(a) intentionally intercepts a message sent by means of that system; or
(b) where a message so sent has been intercepted, intentionally discloses to any person the contents of that message;
shall be guilty of an
offence.
(2) a person engaged in the running of a public
telecommunication system who otherwise than in the course of his duty
intentionally
discloses to any person the contents of any statement of account
specifying the telecommunication services provided for any other
person by means
of that system shall be guilty of an offence.
(3) Subsection (1) above
does not apply to anything done in obedience to a warrant under the hand of the
President and paragraph (b) to that
subsection and subsection (2) above do not apply to any disclosure in connection
with the investigation of any criminal offence
or for the purposes of any
criminal proceedings.
(4) A person guilty of an offence under subsection
(1) and (2) above shall be liable to imprisonment for a term not exceeding three
years or to a fine not exceeding three thousand dollars or to both such
imprisonment and fine.
Interrupting the business of public telecommunications carrier
34. Any person
engaged in the telecommunications business of a carrier may require any person
who is intentionally obstructing such telecommunications
business to leave
premises used for the purposes of that business and, if that person who is so
required refuses or fails to comply
with the requirement, he shall be guilty of
an offence and liable on conviction to a fine not exceeding one thousand dollars
and
may be removed by any police officer on demand.
Tampering with plant of telecommunication
35. Any person who, intending-
(a) to prevent or obstruct the transmission or delivery of any message; or
(b) to intercept or to acquaint himself with the contents of any message; or
(c) to commit mischief,
damages, removes, tampers with,
touches or in any way whatsoever interferes with any telecommunication apparatus
or telecommunication
line, post or other thing whatsoever, being part of or used
in or about any telecommunication system or in the use thereof; shall
be liable
on conviction to imprisonment for a term not exceeding three years or to a fine
not exceeding three thousand dollars or
to both such imprisonment and
fine.
Trespass and wilful obstruction of a telecommunications officer
36.-(1) Any
person who-
(a) without permission of the telecommunications officer in charge enter the signal room of a telecommunication office of the Government or of a telecommunications operator;
(b) enters a fenced enclosure around such a telecommunication office in contravention of any rule or notice not to do so;
(c) refuses to quit such room or enclosure on being requested to do so by any telecommunications officer or servant employed therein; or
(d) wilfully obstructs any such officer or servant in the performance of his duty,
shall be liable on conviction to
imprisonment for a term not exceeding one year or a fine not exceeding one
thousand dollars or to
both such imprisonment and fine.
(2) Any person
who does any of the acts mentioned in subsection (1) above with the intention of
unlawfully learning the contents of
any message, or of committing any offence
punishable under this Decree, shall be liable on conviction (in addition to the
penalty
to which he may be liable under subsection (1) to a further term of
imprisonment not exceeding one year or to a further fine not
exceeding one
thousand dollars or to both such further imprisonment and fine.
Detaining or altering a message or revealing its contents
37. Any
telecommunications officer, or any person not being a telecommunications officer
but having official duties connected with any
office which is used as a
telecommunication office of the Government or of a telecommunications operator,
who-
(a) wilfully secretes, makes away with or alters any message which he has received for transmission or delivery; or
(b) wilfully and otherwise than in obedience to an order of the President or of an officer especially authorised by the President to make the order omits to transmit or detains any message or any part thereof,
shall be liable on conviction to
imprisonment for a term not exceeding three years or to a fine not exceeding
three thousand dollars
or to both such imprisonment and fine.
Impeding or delaying messages
38. Any
telecommunication officer or any person not being a telecommunications officer
but having duties connected with any office which
is used as a telecommunication
office of the Government or of a telecommunications operator who is guilty of
any act of drunkenness,
carelessness, or other misconduct whereby the correct
transmission or the delivery of any message is impeded or delayed, or any
telecommunication
officer who loiters or delays in the transmission or delivery
of any message, shall be liable on conviction to imprisonment for a
term not
exceeding three months or to a fine not exceeding five hundred dollars or to
both such imprisonment and fine.
Fraudulent retention of messages
39. Any person
who-
(a) fraudulently retains, or wilfully secretes, makes away with, or detains a message which ought to have been delivered to some other person; or
(b) being required by a telecommunications officer to deliver up any such message, neglects or refuses to do so, shall be liable on conviction to imprisonment for a term not exceeding three years or to a fine not exceeding three thousand dollars or to both such imprisonment and fine.
Forgery of telegrams
40.-(1) Any
person who with intent to deceive-
(a) forges or wilfully and without due authority alters a telegram; or
(b) utters a telegram knowing the same to be either forged or wilfully and without due authority altered,
shall be liable on conviction to
imprisonment for a term not exceeding three years or to a fine not exceeding
three thousand dollars
or to both such imprisonment and fine.
(2) For the
purposes of this section the expression "telegram" means written or printed
communication sent to or delivered at a post
office or telecommunication office
for transmission by telecommunication and includes any facsimile or telex
transmission.
Fraudulently transmitting messages
41.-Any
telecommunications officer who uses any telecommunication system on which any
charge payable therefor to his employer has not
been paid, intending thereby to
defraud his employer being a person licensed under this Decree to run that
system shall be liable
on conviction to imprisonment for a term not exceeding
one year or to a fine not exceeding one thousand dollars or to both such
imprisonment
and fine.
Assisting the working of an unlicensed telecommunication and radio-communication
42.-Any person
who, knowing or having reason to believe that a radio-communication station or
telecommunication system is being run in
contravention of this Decree-
(a) transmits or receives any message by such station, or system; or
(b) performs any service incidental thereto; or
(c) delivers any message for transmission by such station or system; or
(d) accepts delivery of any message sent thereby, shall be guilty of an offence and liable on conviction to a fine not exceeding one thousand dollars.
PART V-PROVISIONS RELATING TO RADIO-COMMUNICATION
Licensing of radio-communication
43.-(1) No person
shall import, establish or use any station for radio-communication or import,
install or use any apparatus for radio-communication
except under the authority
of a licence in that behalf granted by the Minister, and any person who imports,
establishes or uses any
station for radio-communication or imports, installs or
uses any apparatus for radio-communication except under and in accordance
with
such a licence shall be guilty of an offence under this Decree: Provided that
the Minister may by regulations exempt from the
provisions of this subsection
the importation, establishment, installation or use of stations or apparatus of
such classes or descriptions
as may be specified in the regulations, either
absolutely or subject to such terms, conditions and limitations as may be so
specified.
(2) A licence granted under this section (in this Decree
referred to as a "radio-communication licence") may be issued subject to
such
terms, conditions and limitations as the Minister may think fit, including in
particular in the case of a licence to establish
a station, limitations as to
the position and nature of the station, the purposes for which, the
circumstances in which, and the
persons by whom the station may be used, and the
apparatus which may be, imported, installed or used therein, and in the case of
any other licence, limitations as to the apparatus which may be installed or
used, and the places where, the purposes for which,
the circumstances in which
and the persons by whom the apparatus may be used.
(3) A
radio-communication licence shall, unless previously revoked by the Minister
under any provision contained therein or under
any provision of this Decree
(including any subsidiary legislation hereunder), continue in force for such
period as may be specified
in the licence.
(4) A radio-communication
licence may be revoked, or the terms, conditions or limitations thereof varied,
by a notice in writing of
the Minister served on the holder of the licence or by
a general notice applicable to licences of the class to which the licence
in
question belongs published in such manner as maybe specified in the licence or
where no manner of publication is specified, by
publication in the
Gazette.
(5) Where a radio-communication licence has expired or has been
revoked, it shall be the duty of the person to whom the licence was
issued, and
of every other person in whose possession or under whose control the licence may
be, to cause the licence to be surrendered
to the Minister if required by the
Minister so to do, and any person who without reasonable excuse fails or refuses
to comply with
the provisions of this subsection shall be guilty of an offence
under this Decree:
Provided that this subsection shall not apply to a
licence relating solely to apparatus not designed or adapted for transmission
(as
opposed to reception).
(6) Nothing in this section shall authorise
the inclusion, in any radio-communication licence relating solely to apparatus
not designed
or adapted for transmission (as opposed to reception), of any term
or provision requiring any person to concede any form of right
of entry into any
private dwelling-house.
(7) Nothing in subsection (1) above shall, unless
the Minister shall by regulations otherwise provide, require a licence to be
issued
in respect of a broadcast receiving station.
(8) A person guilty
of an offence against this section shall be liable upon conviction to
imprisonment for a term not exceeding three
years or to a fine not exceeding
five thousand dollars or to both such imprisonment and fine.
(9)
Subsection (10) below applies in any case where a radio-communication licence is
granted to any person who holds a licence granted
under section 7 above
authorising the running of a telecommunication system ("the system"), and the
radio-communication licence authorises
all or any of the following, that is to
say-
(a) the establishment of stations for radio-communication or the installation of apparatus for radio-communication being stations or apparatus forming or intended to form part of the system;
(b) the use of any such stations or apparatus in running the system; and
(c) the installation and use for the purpose of the system (whether by the holder of the licence or by any other person) of any such apparatus connected or intended to be connected to the system,
and does not apply unless the
telecommunications licence is one to which section 8 above applies.
(10)
In any case to which this subsection applies the radio-communication licence may
include terms restricting the exercise by the
Minister of his power under
subsection (4) above to revoke or vary the licence.
(11) Without
prejudice to the generality of subsection (l0) above, the terms that maybe
included in a radio-communication licence
by virtue of that subsection include,
in particular, terms providing that the licence may not be revoked or varied
except with the
consent of the holder of the licence or (as the case may be) in
such other circumstances and on such grounds as may be specified
in the
licence.
(12) Any, such circumstances of grounds may relate to matters
relevant for purposes of Part II above as well as to matters relevant
for
purposes of this Part (and may, in particular, be dependent upon action taken
under Part II in relation to the telecommunications
licence).
(13) A
radio-communication licence containing any terms included in the licence by
virtue of subsection (9) above may also provide
that subsidiary legislation made
under this Part-
(a) shall not apply in relation to any such station or apparatus to which the licence relates; or
(b) shall apply in relation to any such station or apparatus to such an extent only, or subject to such modifications, as may be specified in the licence.
(14) Notwithstanding any term or
provision included in a radio-communication licence in accordance with
subsection (9) the Minister
may at any time by a notice in writing served on the
holder of the licence, revoke the licence or vary its terms, provisions or
limitations,
if it appears to him to be requisite or expedient to do so in the
interests of national security or relations with the government
of a country or
territory outside Fiji.
Fees and charges for radio-communication licences
44.-(1) On the
issue or renewal of a radio-communication licence, and, where the regulations so
provide, at such times thereafter as
maybe prescribed by regulations, there
shall be paid to the Minister by the person to whom the licence is issued such
sums as maybe
prescribed in the regulations to be made by the Minister, and
different provisions may be made in relation to different licences,
according to
the nature, terms, provisions, limitations and duration thereof:
Provided
that the regulations made may contain provisions authorising, in such cases as
are not otherwise dealt with by the regulations,
the charge by the Minister of
such sums, whether on the issue or renewal of the licence or subsequently, as
may in the particular
case appear to him to be proper, but this proviso shall
not apply to licences of any type wholly or mainly intended to meet the needs
of
persons desiring to use, in a private dwelling-house and without making any
charge to other persons, apparatus not designed or
adapted for transmission (as
opposed to reception).
(2) Where sums will or may become payable under
subsection (1) of this section subsequent to the issue or renewal of a licence,
the
Minister may, on the issue or renewal thereof, require such security to be
given, by way of deposit or otherwise, for the payment
of the sums which will or
may become payable as he thinks fit.
Approval of radio-communication apparatus, etc.
45.-(1) Where any
licence granted under section 43 above contains any provision which is framed by
reference to relevant apparatus for
the time being approved under this section
for the purposes of that licence, such apparatus may be approved for those
purposes by
the Minister.
In this subsection "relevant apparatus" means
any radio communication station or apparatus, or apparatus designed or adapted
for use
in connection with any radio-communication station or
apparatus.
(2) A person applying for an approval under this section maybe
required by the Minister to comply with such requirements as the Minister
may
think appropriate; and those requirements may include a requirement to satisfy
some other person with respect to any matter.
(3) An approval under this
section may apply either to particular apparatus or to any apparatus of a
description specified in the
approval, and may so apply either for the purposes
of a particular instrument or for the purposes of instruments falling within any
description so specified.
(4) An approval under this section may specify
conditions which must be complied with if the approval is to apply, for any
purposes
specified in the approval, to any apparatus which is so specified or is
of a description so specified, and any such condition may
impose on the person
to whom the approval is given a requirement from time to time to satisfy any
person with respect to any matter.
(5) The Minister may at anytime,
subject to such conditions and limitations as maybe prescribed in the
regulations, vary or withdraw
any approval given by him under this
section.
(6) Nothing in this Decree shall preclude a person (not being
the Minister or a person acting on his behalf) by whom any matter falls
to be
determined for the purposes of any requirement imposed in pursuance of
subsection (2) or (4) above from charging any fee in
respect of the carrying o