Fiji Telecommunications Act 1999

AN ACT TO CONSTITUTE THE TELECOMMUNICATION AUTHORITY OF THE FIJI ISLANDS, TO PROVIDE FOR ITS OPERATION, TO AMEND AND CONSOLIDATE THE LAW RELATING TO TELECOMMUNICATIONS AND RADIO-COMMUNICATION AND TO PROVIDE FOR THE DEVELOPMENT OF INFORMATION TECHNOLOGY IN THE FIJI ISLANDS ENACTED by the Parliament of the Fiji Islands -

PART 1 - PRELIMINARY

Short title and commencement 1. (1) This Act may be cited as the Telecommunications Act 1999.

(2) This Act commences on a date or dates to be assigned by the Minister by notice in the Gazette.

(3) The Minister may appoint different dates for the commencement of different provisions.

Interpretation 2. (1) In this Act, unless the context otherwise requires - “aircraft” includes a helicopter, a kite and a balloon; "Authority" means the Telecommunication Authority of the Fiji Islands established by section 5; "Board" means the Board of the Authority constituted under section 8; "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; "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; "carrier" means a person licensed to run a public telecommunication system; "Chairperson" means the Chairperson of the Board appointed under section 8 (2); "commercial activities in connection with telecommunications" means the provision of telecommunication services, the supply of telecommunication apparatus or the production or acquisition of such apparatus for supply;

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“committee” means a committee established by the Board under section 15; "dealer in radio-communication apparatus" means a person carrying on the business of producing, manufacturing, repairing, selling, or distributing radio- communication apparatus; "Director-General" means the chief executive officer of the Authority; "member" means a member of the Board; "message" means any communication sent, received, or made by telecommunication or given to a telecommunication officer to be sent by telecommunication; "modification" includes addition, alteration and omission; "post", when used with reference to telecommunications includes any pole, standard, stay, strut or other above-ground contrivance for installing, carrying, supporting or suspending a telecommunication line; "prescribed" means prescribed by regulations made under this Act; "public telecommunication system" means a telecommunication system designated and operating as such under section 63; "radio-communication" means any telecommunication by means of Hertzian waves; "radio-communication apparatus" means any apparatus capable of being used or adapted for radio-communication and, where the context so requires, includes a radio-communication station; "radio-communication licence" means a licence issued under section 45; "radio-communication station" means any telecommunication station capable of being used or being adapted for radio-communication; “regulations” means regulations made under this Act; “ship” means a vessel of any description used in navigations and includes a hovercraft; "signal room" means a room or other enclosed area in which any part of the process of transmitting or receiving radio-communication takes place; "telecommunication apparatus" means apparatus constructed or adapted for use-

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(a) in transmitting or receiving anything falling within paragraphs (a) to (d) of the definition of "telecommunication system" which is to be or has been conveyed by means of a telecommunication system; or (b) in conveying, for the purposes of such a system, anything falling within those paragraphs; "telecommunications code" means the code set out in Schedule 2; "telecommunication line" means -

(a) any wire, cable, tube, pipe or other thing designed or adapted for use in connection with the running of a telecommunication system;

(b) any casing, coating, tube or pipe enclosing such a thing and any appliance and apparatus connected to the thing for such use 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; "telecommunication service" means any of the following - (a) a service consisting in the conveyance by means of a telecommunication system of anything falling within paragraphs (a) to (d) of the definition of "telecommunication system"; (b) 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 (c) a directory information 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) and provided by means of that system; "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- (a) speech, music and other sounds; (b) visual images; (c) signals serving for the imparting (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

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(d) signals serving for the actuation or control of machinery or apparatus; "telecommunications officer" means any person employed either permanently or temporarily by a carrier in connection with a telecommunication system licensed under this Act; "telecommunications operator" means a person licensed under this Act to operate a telecommunication system within the Fiji Islands. (2) For the purposes of this Act- (a) except as provided in section 62(8), a telecommunication system is operated by the person who ultimately controls and manages it; and (b) where one person controls and manages a telecommunication system as agent for another person, that other person operates the system. (3) Subject to subsection (5), a telecommunication system is connected to another telecommunication system if it is being used, or is installed for use, in conveying anything falling within paragraphs (a) to (d) of the definition of "telecommunication system" which is to be or has been conveyed by means of that other system. (4) Subject to subsection (5), apparatus is connected to a telecommunication system if it is being used or is installed for use- (a) in transmitting or receiving anything falling within paragraphs (a) to (d) of the definition of "telecommunication system" 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 include references to energy of any kind mentioned in that definition. (5) The connection to a telecommunication system of any other telecommunication

system or any apparatus is not a connection for the purposes of this Act if the other telecommunication system or that apparatus would not be so connected but for its connection to another telecommunication system.

(6) In subsections (3) and (4), "convey" includes transmit, emit, switch and receive. (7) For the purposes of any licence granted, approval given or order made under this Act, any description or class may be framed by reference to any circumstances whatsoever.

Purpose of Act 3. (1) The purpose of this Act is to provide a regulatory framework consistent with maximum accountability, participation, predicability and transparency which will -

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(a) promote the long-term interests of users of telecommunication services; (b) promote the development of a Fiji Islands telecommunications industry that is efficient, competitive and responsive to the needs of the community; (c) promote the supply of diverse and innovative telecommunication services; (d) promote - (i) the development of the technical capabilities and skills of the Fiji Islands telecommunications industry; (ii) the development of the value-added and export-oriented activities of the Fiji Islands telecommunications industry; and (iii) research and development that contributes to the growth of the Fiji Islands telecommunications industry; (e) provide appropriate community safeguards in relation to telecommunications activities and regulate adequately participants in all sections of the Fiji Islands telecommunications industry. (2) Telecommunications must be regulated in a manner that - (a) promotes the greatest practicable use of industry self-regulation; and (b) does not impose undue financial and administrative burdens on participants in the telecommunications industry, but which does not compromise the effectiveness of regulation in achieving the purpose of this Act.

Act binds the State 4. This Act binds the State. PART 2 - TELECOMMUNICATIONS AUTHORITY OF THE FIJI ISLANDS

Telecommunications Authority of the Fiji Islands

5. (1) This section establishes the Telecommunications Authority of the Fiji Islands. (2) The Authority is a body corporate with perpetual succession and a common seal. (3) The Authority has all the powers of a natural person of full age and capacity and may exercise its powers in any way that is necessary or convenient for carrying out its functions under this Act.

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Functions 6. (1) The functions of the Authority are to - (a) promote and facilitate the provision throughout the Fiji Islands (whether by itself or by any person authorised by a licence granted under this Act) of good and sufficient domestic and international telecommunication services, other than broadcasting and television; (b) implement the policy of the Government relating to the telecommunications industry and the radio frequency spectrum; (c) advise the Government on all telecommunication and radio- communication matters including legislative reform, and on matters relating to the Authority generally; (d) exercise licensing and regulatory functions in respect of the allocation and use of satellite orbits and the radio frequency spectrum in the Fiji Islands for all purposes, and establish standards and codes of practice in relation to radio-communication matters; (e) promote the development of telecommunication systems and services in accordance, as far as practicable, with recognised international standard practices and public demand; (f) establish standards and codes relating to equipment attached to telecommunication and radio-communication systems; (g) be the regulator of telecommunication systems and services in the Fiji Islands ; (h) provide economic and technical monitoring of the telecommunication industry in accordance with recognised international standard practices; (i) promote fair competition and efficient market conduct within the telecommunication industry; (j) grant licences for telecommunication purposes and supervise and enforce compliance with the provisions of such licences; (k) regulate rates, charges and fees levied by operators of telecommunication systems and services; (l) regulate the interconnection of and access to systems of operators of telecommunication systems and services; (m) control and regulate the management and allocation of numbering plans and schemes for telecommunication systems and services;

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(n) approve guidelines for licensees for the purpose of the keeping of accounts and cost allocation manuals; (o) control and regulate the importation of, dealing in and use of telecommunication equipment; (p) regulate the conduct of examinations for, and the issue of, certificates of competency to persons wishing to install, operate or repair any telecommunication apparatus; (q) act internationally as the national body representing the Fiji Islands in respect of radio-communication and telecommunication matters; (r) promote research and development in the fields of telecommunication systems and services and, in particular, of the peaceful uses of technology relating to telecommunication services; (s) collaborate with educational institutions for the promotion of technical education in the fields of telecommunication systems and service and radio-communication;

(t) develop a system for receiving and responding to complaints by consumers in relation to radio-communication and telecommunication services;

(u) levy charges and fees for the granting of licences, spectrum rights, administration of spectrum registrations, equipment approvals and other services provided by the Authority; and (v) perform any other function assigned to it by this Act or any other Act. (2) In performing its functions the Authority must have regard to - (a) the primary purpose of this Act as set out in section 3(1); (b) efficiency and economy; (c) satisfying all reasonable demands for telecommunication services; (d) fostering the development and expansion of telecommunication services internationally in collaboration with other countries and international organisations; (e) the promotion of measures for the safety of life through telecommunications; (f) the provision of telecommunication services at reasonable rates consistent with efficient service and the necessity for maintaining independent financial viability in the information industry;

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(g) the effective and efficient use of the radio frequency spectrum. (3) Nothing in this section - (a) imposes on the Authority, either directly or indirectly, any form of duty or liability enforceable by proceedings before a court; (b) precludes the Authority from interrupting, suspending or restricting any telecommunication service operated in contravention of this Act. (4) In performing its functions and exercising it powers, the Authority must, where appropriate and practicable, consult - (a) government, commercial, industrial, consumer and standards bodies and organisations; and (b) other relevant bodies and organisations. (5) The Authority must, so far as practicable, keep under review the carrying on of activities connected with telecommunications both within and outside the Fiji Islands.

(6) The Authority must, so far as practicable, from time to time collect information with respect to commercial activities connected with telecommunications carried on in the Fiji Islands and the persons by whom they are carried on, in order to ascertain all matters relevant to its functions.

Government policy

7. The Authority must perform its functions in a manner consistent with - (a) Government policy notified to it in writing by the Minister; and (b) the obligations of the State under any international agreement.

The Board 8. (1) The general direction and management of the Authority is vested in a Board consisting of - (a) a Chairperson, (b) the Director-General of the Authority, and (c) 3 other members. (2) The Chairperson must be appointed by the Prime Minister, acting on the advice of the Minister after consultation with the Leader of the Opposition. (3) The Director-General must be appointed by the Board for such term and on such conditions as it thinks fit.

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(4) The other members must be appointed by the Minister from among persons who are qualified or experienced in matters of public administration, commerce, industry, technology, economics, consumer affairs or law. (5) When appointing a member the Minister must - (a) have regard to any potential conflicts of interest the person has; (b) designate a period not exceeding 5 years as the term of the appointment; (c) appoint each member for a different period of time. (6) A member is eligible for reappointment. (7) The conditions of appointment of members are as specified in the instrument of appointment. (8) Each member must before performing any functions as member make a declaration in the form set out in Schedule 1.

Vacation of office 9. (1) The office of a member becomes vacant if the member - (a) resigns by giving written notice to the Minister; (b) has been absent, without leave of the Authority, from 3 consecutive meetings of the Authority; (c) becomes or has, in the Fiji Islands or elsewhere, been declared bankrupt and has not been discharged; (d) has been convicted, in the Fiji Islands or elsewhere, of an offence involving dishonesty or an offence under this Act; (e) has, in the Fiji Islands or elsewhere, been disqualified or suspended from practising a profession by reason of misconduct; (f) becomes permanently incapacitated from performing the duties of a member. (2) The Authority may act notwithstanding a vacancy in its membership. (3) The Minister may, at any time, by written notice, advise a member other than the Director-General that the Minister intends to recommend the termination of the appointment of the member on the grounds of misconduct or incapacity of a kind that adversely affects the member's ability to perform the duties of a member.

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(4) Within 14 days of receipt of a notice under subsection (3), the member may reply in writing to the Minister who must consider the reply and if appropriate recommend to the Prime Minister that the appointment be terminated. (5) The Prime Minister may after considering a recommendation under subsection (4) terminate the appointment. (6) Notice of a vacancy under this section must be given in the Gazette by the Minister.

Meetings 10. (1) The Board must meet as often as is necessary for the performance of the functions of the Authority and not less often than once in each month. (2) At any meeting the quorum is a majority of the members at that time. (3) Notice of a meeting must be given to each member by being delivered by hand or sent by post, telex, facsimile, or other message to an address supplied to the Authority for the purpose. (4) Decisions at meetings of the Board must be by a simple majority of the members present and voting, and in the case of an equality of votes, the member presiding has a casting vote as well as a deliberative vote. (5) If a meeting of the Board is held by means of teleconferencing, all members who participate in the teleconference are to be counted for the purpose of forming a quorum. (6) Subject to this Act, the Board may regulate its procedure in any manner it thinks fit.

Disclosure of interest

11. (1) A member of the Board who is, directly or indirectly, interested in a matter under discussion by the Board must disclose to the Board the fact and nature of the interest. (2) A disclosure under subsection (1) must be recorded in the minutes. (3) After a disclosure under subsection (1) the member in question - (a) shall not take part in or be present during any discussion, deliberation or decision of the Board in regard to that matter; but (b) may be counted for the purpose of forming a quorum. (4) A member who fails to disclose an interest as required by subsection (1) commits an offence and is liable on conviction to a fine of $2,000 and to imprisonment for 1 year.

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Minutes

12. (1) The Board, and every committee of the Board, must keep minutes of all meetings in a proper form. (2) Minutes of a meeting, if duly signed by the person presiding, are in any legal proceedings admissible as evidence of the facts stated in them and a meeting of the Board or committee in respect of which minutes have been so signed is deemed to have been duly convened and held and the members present at it to have been duly appointed to act.

Common seal 13. (1) The Authority must have a common seal of a design the Board decides. (2) The common seal must be kept by the Chairman and its affixing must be authenticated by any 2 members generally authorised by the Board for the purpose, or by the Chairman and one member specifically authorised by the Board. (3) All documents purporting to be sealed with the common seal and authenticated in accordance with subsection (2) are, unless the contrary is proved, presumed to have been validly executed.

Delegation of powers 14. (1) The Board may, by writing under the hand of the Chairman, delegate to any person any of the Authority's powers under this Act other than the power to make regulations and the power to suspend, revoke or vary any licence, permit or approval. (2) A delegation under this section may be made to a specified person or to the holder for the time being of a specified office or to the holders of offices of a specified class. (3) A delegation may be made subject to any restrictions and conditions the Board thinks fit, and may be made either generally or in relation to any particular case or class of cases. (4) A person purporting to exercise any power of the Authority by virtue of a delegation under this section must, when required to do so, produce evidence of the delegation.

Appointment of committees 15. (1) The Board may - (a) establish one or more committees to assist the Authority in the performance of its functions under this Act;

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(b) appoint any person to be a member of a committee established under paragraph (a); and (c) appoint a chairperson of any such committee. (2) A committee established under this section may regulate its own procedures but is subject to any general directions given by the Authority. (3) Subject to subsection (2), a committee established under this section meets at the times and places its chairman decides. (4) A committee may invite any person to attend any meeting for the purpose of advising it on any matter and a person so invited is not entitled to vote. (5) Members of a committee and persons invited under subsection (4) to attend may be paid allowances and expenses as the Authority decides.

Appointment of employees, agents and consultants 16. The Authority may appoint on terms and conditions it thinks fit any employee, agent, or consultant necessary or expedient for performing its functions.

Director-General 17. (1) The Authority must appoint a Director-General for a term and on conditions the Board decides. (2) The Director-General is the chief executive officer of the Authority and - (a) is responsible to the Board for the proper administration and management of the functions and affairs of the Authority in accordance with the policy laid down by the Board; (b) is responsible to the Board for the administration and enforcement this Act; (c) must perform any other functions or duties the Board decides. (3) The Director-General may delegate to any other officer or employee of the Authority any of the powers of the Director-General except the power of delegation under this subsection.

Funds of the Authority 18. The funds of the Authority consist of - (a) money appropriated by Parliament and paid to the Authority for the purposes of this Act; (b) fees or other charges imposed under this Act or authorised under any other law; (c) money received by way of grants or donations;

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(d) income from investments by the Authority made under this Act; (e) money borrowed by the Authority in accordance with this Act; (f) other money which becomes payable to the Authority in the performance of its functions.

Bank accounts 19. (1) The Authority must open and maintain any bank account necessary for the performance of its functions.

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

(3) The withdrawal or payment of money from any account must be authorised by prior resolution of the Board or submitted to the Board for confirmation as soon as practicable after the withdrawal or payment. (4) The withdrawal or payment of money from an account opened under subsection (1) must be effected only by a person or persons authorised by the Board.

Power to borrow 20. (1) The Authority may, with the approval of the Minister responsible for finance, borrow, upon terms and conditions that Minister approves, any sum required by the Authority to meet its obligations or to perform its functions. (2) Approval under subsection (1) is not required for overdraft facilities required for working capital purposes.

Conservation of funds

21. The Authority must conserve its funds by performing its functions and exercising its powers under this Act so as to ensure that the revenues of the Authority from the performance of its functions are sufficient to meet all sums properly chargeable to its revenue account, including depreciation and interest on capital.

Charges for services 22. (1) The Authority may levy charges or fees for any service rendered by it in the performance of its functions or the exercise of its powers under this Act. (2) Without limiting subsection (1), the Authority may levy charges or fees - (a) for publications made generally available by the Authority; (b) for arbitration of access terms pursuant to section 37.

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(3) Without limiting subsection (1), the Authority may - (a) make a scheme or schemes for determining rates of charges or fees for any service provided by it; or (b) prescribe the rate of charges and fees or the method of calculating charges or fees for services provided by it, and the circumstances in which a person who exercises a power delegated by the Authority may retain any fee levied in respect of the exercise of that power. (4) Charges and fees due to the Authority under this Act constitute a debt recoverable in a court of competent jurisdiction.

Expenditure 23. The funds of the Authority must only be expended for the purpose of - (a) paying any expenditure lawfully incurred by the Authority in the performance of its functions; (b) discharging any obligation or liability of the Authority and making any payment which the Authority is required or authorised to make for the performance of its functions; (c) providing grants for the achievement of government policy objectives consistent with the purposes of this Act; (d) paying any expenses for the purposes of this Act.

Investment 24. (1) The Authority may invest any of its funds which are not required for current expenditure by the Authority - (a) on fixed deposit with a bank in the Fiji Islands; or (b) in Government securities.

Financial year 25. The financial year of the Authority is from 1st January to 31st December of each year.

Half yearly reports 26. (1) The Authority must furnish the Minister with a report on its activities for the first half

of each financial year . (2) The half yearly report must be given to the Minister by the end of August or on any later date agreed between the Authority and the Minister.

Annual report 27. (1) Within 4 months after the end of each financial year the Authority must prepare a report of its activities during that financial year.

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(2) The Authority must send a copy of the annual report to the Minister who must cause it to be laid before each House of the Parliament as soon as practicable. (3) The annual report required by subsection (1) must contain - (a) an audited statement of accounts prepared in accordance with generally accepted accounting practice as determined by the Fiji Institute of Accountants;

(b) a statement of financial performance, including a statement of the financial position;

(c) a statement of cash flows; (d) any other information required to give a true and fair view of the Authority's financial affairs; and (e) a copy of the auditor's report. (4) The accounts of the Authority must be audited by the Auditor General.

Corporate plan

28. (1) The Authority must in each year publish a corporate plan ("the plan") in respect of the future operations of the Authority and must act in accordance with it. (2) The plan must cover a period of at least 3 years. (3) The plan must include details of - (a) the objectives of the Authority; (b) the strategies and policies to be followed by the Authority in order to achieve those objectives; and (c) any other matter the Minister requires. (4) The Authority must keep the Minister informed about - (a) changes to the plan; and

(b) matters that might significantly affect the achievement of the objectives set out in the plan.

Publication of information and advice

29. (1) The Authority may arrange for the publication, in a form and manner it considers appropriate, of any information and advice that appears to it to be expedient to give to consumers, purchasers or other users of telecommunication services or telecommunication apparatus in the Fiji Islands.

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(2) In arranging for the publication of information or advice under section (1), the Authority must have regard to the need to exclude, so far as practicable - (a) any matter which relates to the private affairs of an individual, if the publication of the matter would or might, in the opinion of the Authority, seriously harm the interests of that individual; and (b) any matter which relates specifically to the affairs of a particular body of persons, whether corporate or un incorporated, if publication of the matter would or might, in the opinion of the Authority, seriously harm the interests of that body. (3) Without limiting subsection (1) the Authority must 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 the Fiji Islands. (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 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.

Restrictions on disclosure of information 30. (1) Subject to subsections (2) and (3), no information with respect to any particular business which - (a) has been obtained under or by virtue of this Act; and (b) relates to the private affairs of any individual or to any particular business, may, during the lifetime of that individual or so long as that business continues to be carried on, be disclosed without the consent of the individual or the person for the time being carrying on the business. (2) Subsection (1) does not apply to disclosure of information - (a) for the purpose of facilitating the performance of any functions of the Authority or of a trade measurement authority; (b) in connection with the investigation of any criminal offence or for the purpose of any criminal proceedings; (c) for the purpose of any civil proceedings brought under or by virtue of this Act.

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(3) Subsection (1) does not - (a) limit the matters which may be published under section 29 or included in, or made public as part of, a report of the Authority; or (b) apply to any information which has been so published or has been made public as part of such a report. (4) A person who discloses any information in contravention of this section commits an offence and is liable on conviction to a fine of $1,000.

Power to require information 31. (1) The Authority may, for any relevant purpose, by notice in writing - (a) require any person to produce to it, at a time and place specified in the notice, any document which is specified or described in the notice and which is in that person's custody or under its control; or (b) require any person carrying on any business- (i) to keep the records specified or described in the notice; and (ii) provide to the Authority copies of such records and any other estimate, return or other information specified or described in the notice. (2) The Authority must specify the time, the manner and the form in which any such estimate, return or information is to be provided. (3) No person may be compelled for the purpose of this section - (a) to produce any document which the person could not be compelled to produce in civil proceedings before a court; or (b) in complying with any requirement for the furnishing of information, to give any information which the person could not be compelled to give in evidence in such proceedings. (4) A person who refuses or, without reasonable excuse, fails to do anything duly required of it by a notice under subsection (1) commits an offence and is liable on conviction to a fine of $2,000 and to imprisonment for 1 year. (5) A person who- (a) intentionally alters, suppresses or destroys any document which the person has been required by a notice under subsection (1) to produce; or (b) in furnishing any estimate, return or other information required under any such notice, makes any statement which the person knows to be false in a material particular, or recklessly makes any statement which is false in a material particular, commits an offence and is liable on conviction to a fine of $6,000 and to imprisonment for 3 years.

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(6) If a person defaults in complying with a notice under subsection (1), the court may, on the application of the Authority, make any order 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 and incidental to the application must be born by the person in default or by any officer of a body corporate or other association who is responsible for the default. (7) In this section - "relevant purpose" means a purpose connected with - (a) the investigation of an offence under section 60, section 70 or section 71 , (b) proceedings for such an offence; or

(c) the exercise of the functions of the Authority under section 66 or in respect of a consumer complaint.

Symbol of Authority

32. (1) Subject to any other law relating to designs, the Authority has the exclusive right to the use of the symbol, design or representation selected by it or devised in connection with its activities or affairs.

(2) A person who uses a symbol, design or representation identical to that of the Authority or which so resembles the symbol, design or representation of the Authority as to deceive or cause confusion or to be likely to deceive or cause confusion commits an offence and is liable on conviction to a fine of $2,000.

Secrecy 33. (1) A person who is or has been a member, officer, employee or agent of the Authority or

of a committee or who is or has been invited to a meeting of the Authority or of a committee must not disclose any information relating to the affairs of the Authority or of any other person which has been obtained by or in the performance of duties or the exercise of functions under this Act unless -

(a) the disclosure is necessary for the performance of those duties or the exercise of those functions; (b) the disclosure is required to do so by or under any written law; or (c) disclosure is necessary for the performance of the Authority’s functions under this Act. (2) A person who receives any information relating to the affairs of the Authority must not use the information to that or any other person's financial gain. (3) A person who contravenes subsection (1) or (2) commits an offence and is liable on conviction to a fine of $10,000 and to imprisonment for 5 years.

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Limitation of liability 34. (1) No proceedings, civil or criminal, lie against the Authority for anything it may do or

fail to do in the course of the exercise or intended exercise of its functions, unless it is shown that the Authority did not act in good faith or with reasonable care.

(2) No proceedings, civil or criminal, lie against any member of the Board, or an

officer, or employee of the Authority, for anything done or said, or any failure to do or say anything in the course of the operations of the Authority, unless it is shown that the person did not act in good faith or with reasonable care.

(3) All members of the Board and all officers, employees or agents of the Authority while discharging their duties are, for the purposes of the Penal Code (Cap.17), deemed to be employed in the public service.

PART 3 - TELECOMMUNICATION SERVICES

Universal service

35. (1) The purpose of universal service is to give all people in the Fiji Islands, wherever they reside or carry on business, reasonable access on an equitable basis to - (a) standard telephone services; (b) payphones; and (c) prescribed carriage services. (2) In the first instances, the universal service goals are - (a) to have a carriage service that provides digital data capability comparable to an ISDN channel available to all in the Fiji Islands by 1st January 2000 or another date fixed by the Authority having regard to its findings on the timing of the availability of the service; (b) to achieve an overall telephone density of not less than 10% by 31st December 2000; and (c) to achieve a minimum of 4% telephone penetration in rural areas by 31st December 2000. (3) The universal service goals, implementation strategies, and performance indicators for each planning period must be identified by the Authority in its corporate plans.

Right to access 36. (1) A carrier has the right to interconnect its facilities to a network of any other carrier - (a) for the purpose of the other carrier carrying communications across the network in accordance with this Act; and

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(b) on any terms and conditions as the carriers agree or, failing agreement, as the Authority determines under section 37. (2) A licensee of a telecommunication network must provide access to that network - (a) in accordance with this Act; and (b) on any terms and conditions the carriers agree or, failing agreement, the Authority determines under section 37. (3) A carrier that wishes to interconnect its facilities to a network of another licensee must make a written request to the other carrier for access to the telecommunication network and lodge a copy of the request with the Authority. (4) If the licensee of a network receives a request for access under this section, it must - (a) unless the Authority otherwise directs, negotiate the terms of access with the applicant; and (b) if negotiation is requested, negotiate in good faith. (5) If 2 carriers propose to negotiate, or are negotiating, the terms and conditions of an access agreement, or a variation to an access agreement, either or both of them may request the Authority in writing to arrange for a representative of the Authority to attend the negotiations, and the Authority must comply with the request. (6) Each party to an access agreement must supply to the Authority - (a) a copy of the agreement and any amendment to it, within 14 days of the agreement or amendment; (b) any information relating to the agreement the Authority requires.

Arbitration of access terms 37. (1) If 2 carriers cannot within 90 days of a request under section 36 agree upon the terms and conditions of an access agreement, or variation to an access agreement either carrier or both carriers may in writing submit the matter to the Authority for arbitration under this section. (2) The Authority must comply with a submission for arbitration under subsection (1) and promptly take all steps necessary to determine the matter submitted for arbitration. (3) A determination by the Authority under this section must - (a) specify the facilities and the network concerned; and b) set out the terms and conditions of the interconnection.

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(4) The terms and conditions set consequent to subsection (3) (b) must relate only to such of the following as are appropriate in the particular case - (a) technical standards for interconnection; (b) points of interconnection; (c) supply of facilities for the purposes of interconnection or carriage; (d) supply by the one carrier to the other of - (i) information about traffic carried on the network concerned; or (ii) any other information necessary to ensure the efficient supply of telecommunications services by means of the facilities and network concerned; (e) charges payable for the interconnection or carriage, for the supply of such facilities or information, or for related matters; (f) matters incidental to a matter of a kind referred to this subsection. (5) The Authority may include in a carrier's licence any condition necessary or desirable to give effect to a determination made under this section and may, by notice in writing to a carrier, vary that carrier's licence by inserting such a condition. (6) A determination made under this section following an arbitration - (a) is taken to be an access agreement between the carriers who were parties to the arbitration; (b) must be registered by the Authority; and (c) subject to compliance with this Act, may be varied by the carriers, and enforced by each of them, as if it were a contract between them.

Charging principles 38. (1) The Authority may by regulation prescribe the principles that are to be applied in agreeing on or determining terms and conditions about charges payable by one carrier to another for - (a) interconnection of facilities to networks of the other carrier; (b) carriage of communications across the networks of the other carrier; (c) the supply of facilities for the purposes of such interconnection or carriage;

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(d) the grant of rights or interests, or the supply of goods or services; or (e) matters incidental to any matter of a kind referred to in this subsection. (2) If the charging principles have been determined under subsection (1), any access agreement agreed by carriers or determined by the Authority must comply with them.

Competition 39 (1) A dominant operator must not take advantage of its power in a market for the supply of a telecommunication service with a view to- (a) eliminating or substantially damaging another licensee in the market in which it operates or in any other market; (b) preventing the entry of any other person into that market or any other market; (c) deterring any other licensee from engaging in competitive conduct in that or in any other market. (2) A dominant operator must not discriminate between persons who acquire or make use of a telecommunication service in the market in which it operates in relation to- (a) any fee or charge for the service provided; (b) the performance characteristics of the service provided; (c) any other term or condition on which the service is provided. (3) Nothing in subsection (2) prevents a dominant operator from making a reasonable allowance, subject to approval by the Authority, for the cost of providing a telecommunication service if the difference results from - (a) different quantities in which the service is supplied; (b) different transmission capacities needed for the supply of the service; (c) different places from or to which the service is provided; (d) different periods for which the service is provided; (e) different performance characteristics of the service provided; or f) doing an act in good faith to meet a price or benefit offered by a competitor.

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(4) A licensee must not enter into or give effect to any agreement, arrangement or understanding which has the purpose of or has, or is likely to have, the effect of significantly lessening competition in any market for the supply of telecommunication services or of any product used in connection with telecommunication services. (5) A licensee must not enter into or give effect to any agreement, arrangement or understanding with another licensee which has the purpose of or has, or is likely to have, the effect of fixing, controlling or maintaining the prices for, or any discount, allowance, credit or rebate for, any telecommunication service or any product used in connection with telecommunication services. (6) In this section "dominant operator" means a licensee which, by the terms of its licence or by reason of its share in the market or the availability to it of technological ability, infrastructure or capital, has a substantial degree of power in the market for the supply of a telecommunication service. Tariffs 40. (1) A carrier must provide the Authority with a tariff of its charges for every telecommunication service which it proposes to supply and of every intended alteration of those charges, in a form approved by the Authority and in compliance with the requirements of this section. (2) A tariff provided in accordance with subsection (1) must include information relating to - (a) the period during which the tariff is to apply; (b) the description of the telecommunication service;

(c) the amount of the charges payable for each telecommunication service including the amount of any surcharge that may be imposed as a result of non-payment of fees or charges and the cost-related computation of that surcharge;

(d) the quantity in which the service will be supplied; (e) the transmission capacity needed to supply the service; (f) the performance characteristics for the service supplied; and (g) the terms and conditions on which the service will be supplied. (3) On receipt of a tariff, the Authority must - (a) determine whether to allow, disallow, or amend the tariff; (b) forthwith give public notice in 2 daily newspapers of the determination made.

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(4) A carrier must supply to the Authority all information relating to the proposed tariff

the Authority considers necessary or desirable to enable the Authority to monitor compliance with this Act.

(5) The Authority may, by notice in writing to a carrier, disallow any tariff which does not comply with his Act or with any condition of its licence. (6) If the Authority is of opinion that the operation of a tariff by a dominant operator would have an anti-competitive effect in any market for any telecommunication service, it must, by notice in writing, inform the dominant operator that it is disallowing the tariff, and of the reasons for doing so. (7) For the purposes of subsection (6), the operation of a tariff is deemed to have an anti-competitive effect in a market if, and only if, the operation or continued operation of the tariff, whether or not in conjunction with other tariffs or commercial arrangements, has, or is likely to have, the effect of materially and adversely affecting the development or maintenance of commercially sustainable competition in that market. (8) A carrier must, at each of its business offices, make available for inspection or purchase a copy of every tariff approved by the Authority. (9) A carrier must not demand or receive from any person payment of any fee or charge, for the supply of a telecommunication service, which - (a) exceeds the fee or charge payable under the appropriate tariff; (b) is not worked out or computed in accordance with the appropriate tariff; or (c) is worked out or computed in accordance with a tariff which has been disallowed under subsection (6).

Time limit for reaching decisions 41. (1) If a person applies to the Authority in writing for a decision pursuant to this Act, the Authority must make the decision - (a) within 30 working days after receiving the application; or (b) if the Authority has within those 30 days given the applicant a written request for further information about the application, within 30 working days after receiving that further information. (2) The Authority is taken, for the purposes of this Act, to have made a decision to refuse the application if it has not informed the applicant of its decision before the end of the relevant period of 30 days.

Application for reconsideration of decision

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42. (1) A person affected by a decision which relates to the grant, variation, or cancellation of a licence and who is dissatisfied with the decision may apply to the Authority for the Authority to reconsider the decision.

(2) An application under subsection (1) must - (a) be in a form approved by the Authority; and (b) set out the reasons for the application. (3) The application must be made within - (a) 30 working days after the applicant is informed of the decision; or (b) if, either before or after the end of that period of 30 days, the Authority extends the period within which the application may be made, the extended period for making the application. (4) An approved form of an application may provide for verification by statutory declaration of statements in the application.

Reconsideration by the Authority 43. (1) Upon receiving an application under section 42, the Authority must - (a) reconsider the decision; and (b) affirm, vary or revoke the decision. (2) The Authority's decision on reconsideration of a decision has effect as if it had been made under the provision under which the original decision was made. (3) The Authority must give to the applicant a notice stating its decision on the reconsideration together with a statement of its reasons for its decision. (4) The Authority must make its decision on a reconsideration within 90 days after receiving the application for reconsideration. (5) The Authority is taken to have made a decision affirming the original decision if it has not informed the applicant of its decision on the reconsideration within 90 days.

Administrative review 44. (1) Subject to subsection (2), application may be made to the High Court for administrative review of a decision of the Authority under this Act. (2) No administrative review of a decision of the Authority may be made until there has been a reconsideration of the decision under section 43.

PART 4 - RADIO-COMMUNICATION

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Licensing of radio-communication 45. (1) It is an offence for a person to - (a) import, establish or use any station for radio-communication; or (b) import, install or use any apparatus for radio-communication, except under the authority of and in accordance with a licence granted by the Authority. (2) The Authority may by regulations exempt from the provisions of subsection (1) the importation, establishment, installation or use of a station or apparatus of a class or description specified in the regulations, either absolutely or subject to specified terms, conditions and limitations. (3) A licence granted under this section may be issued subject to any terms, conditions and limitations the Authority thinks fit, including in particular -

(a) 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 for the station or installed or used there; and

(b) 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. (4) A radio-communication licence, unless previously revoked by the Authority under this Act, continues in force for the period specified in the licence.

(5) A radio-communication licence may be revoked, or its terms, conditions or limitations varied, by a notice in writing by the Authority 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 the manner specified in the licence or, if no manner of publication is specified, by publication in the Gazette.

(6) If a radio-communication licence has expired or been revoked, it is 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 is, to cause the licence to be surrendered to the Authority when so required by the Authority, and a person who without reasonable excuse fails or refuses to comply with this subsection commits an offence. (7) Subsection (6) does not apply to a licence relating solely to apparatus not designed or adapted for transmission (as opposed to reception).

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(8) Nothing in this section authorises 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 a right of entry into a private dwelling-house. (9) Unless the Authority by regulations otherwise provides, nothing in subsection (1) requires a licence to be issued in respect of a broadcast receiving station. (10) If - (a) radio-communication licence is granted to a person who holds a licence under this Act authorising the operations of a telecommunication system ("the system"); (b) the radio-communication licence authorises - (i) the establishment of stations for radio-communication or the installation of apparatus for radio-communication as part of the system; (ii) the use of any such station or apparatus in operating the system; or (iii) 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 (c) the telecommunications licence is one to which section 63 applies,

the licence may include terms restricting the exercise by the Authority of the power under subsection (5) to revoke or vary the licence.

(11) Without limiting subsection (10), the terms that may be included in a radio-

communication licence issued under it include terms providing that the licence may not be revoked or varied except with the consent of the holder of the licence or in circumstances and on grounds specified in the licence.

(12) The circumstances or grounds mentioned in subsection (11) may relate to matters relevant for the purposes of Part 5 as well as to matters relevant for the purposes of this Part and may, in particular, be dependent upon action taken in relation to the telecommunications licence. (13) A radio-communication licence which contains any terms included by virtue of subsection (10) may also provide that regulations -

(a) apply in relation to any station or apparatus to which the licence relates; or (b) apply in relation to any such station or apparatus only to the extent, or subject to the modifications, specified in the licence.

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(14) If it appears to the Minister necessary or expedient to do so in the interests of national security or of relations with the government of another country or territory, the Minister may by notice in writing advise the Authority to revoke a licence to which subsection (10) applies or to vary its terms, provisions or limitations. (15) On receipt of a notice under subsection (14) the Authority must - (a) notwithstanding subsection (10) or any term or provision included in the licence, revoke or vary the licence in accordance with the advice; and (b) by notice in writing served on the holder advise the holder of the action taken. (16) A person who commits an offence against this section is liable on conviction to a fine of $6,000 and to imprisonment for 3 years.

Fees and charges for radio-communication licences 46. (1) On the issue or renewal of a radio-communication licence, and at any other prescribed any times, the person to whom a licence is issued must pay to the Authority the prescribed sum, and different sums may be provided in relation to different licences, according to the nature, terms, provisions, limitations and duration of the licence. (2) The regulations may contain a provision authorising, in a case not otherwise dealt with by the regulations, the charging by the Authority of a sum, whether on the issue or renewal of the licence or subsequently, which in the particular case appears to it to be proper, but such a provision must not be included in a licence of a 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). (3) If a sum is payable under subsection (1) for the issue or renewal of a licence, the Authority may, on the issue or renewal, require any security it thinks fit to be given, by way of deposit or otherwise, for the payment of the sum.

Approval of radio-communication apparatus 47. (1) If a licence granted under section 45 contains a provision which is framed by reference to relevant apparatus for the time being approved under this section for the purposes of that licence, the apparatus may be approved for those purposes by the Authority. (2) In subsection (1) "relevant apparatus" means any radio-communication station or apparatus designed or adapted for use in connection with any radio- communication station or apparatus.

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(3) A person applying for an approval under this section may be required by the Authority to comply with any requirements the Authority thinks appropriate, and those requirements may include a requirement to satisfy some other person with respect to any matter. (4) 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. (5) 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 to satisfy any person from time to time with respect to any matter. (6) The Authority may at any time, subject to any prescribed conditions and limitations, vary or withdraw any approval given by it under this section.

(7) Nothing in this Act precludes a person by whom any matter falls to be determined for the purposes of a requirement imposed under subsection (3) or (5) from charging a fee in respect of the carrying out of a test or other assessment made by that person.

Radio-communication operators

48. (1) The Authority may hold examinations to determine the competence of persons to fill positions in connection with the operation of a radio-communication station or radio-communication apparatus and may issue to persons successful in such examinations certificates of competency of types it determines. (2) The Authority may issue to any person a permit in writing authorising the person to fill a position in connection with the operation of a radio-communication station or radio-communication apparatus specified in the permit, being a position for the holding of which the possession of such permit is, under a radio-communication licence granted under this Act, a necessary qualification. (3) The Authority may, if it thinks fit, by notice suspend a permit granted under subsection (2) with a view to the revocation of the permit, specifying in the notice the reason why it proposes to revoke the permit and the time, not less than 28 days from the date of publication of the notice, within which the person whose permit has been suspended may show cause why the permit should not be revoked.

(4) If, after the period specified and after considering any representations of the person whose permit has been suspended, the Authority is satisfied that there are sufficient grounds for revocation of the permit, it must revoke the permit,

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but if it is satisfied that there are no sufficient grounds for such revocation, it must forthwith lift the suspension.

(5) If a permit granted under subsection (2) has ceased to be in force, has been suspended or has been revoked, it is the duty of the person to whom the permit was issued, and of every other person in whose possession or under whose control the permit is, to cause the permit to be surrendered to the Authority if so required by the Authority, and any person who without reasonable excuse fails or refuses to comply with this subsection commits an offence and is liable on conviction to a fine of $1,000 and to imprisonment for 6 months.

Dealings in and custody of certain apparatus 49. (1) In this section "apparatus" means any radio-communication apparatus and any apparatus designed or adapted for use in connection with any radio- communication station and apparatus. (2) If the Authority considers it expedient to do so for the purpose of preventing or reducing the risk of interference with radio-communication, it may make an order applying restrictions under this section in relation to apparatus to which this section applies of any class or description specified in the order. (3) The following actions in relation to apparatus are subject to restriction under this section - (a) manufacture (whether or not for sale); (b) selling or offering for sale, letting on hire or offering to let on hire, or indicating (whether by display of the apparatus or by any form of advertisement) willingness to sell or let on hire; (c) having in custody or control; (d) importation. (4) An order under this section in respect of any apparatus must specify which of the actions in relation to the apparatus subject to restriction under this section are restricted by the order. (5) Any action for the time being restricted by an order under this section is prohibited by this section- (a) except with the approval of the Authority and subject to compliance with any terms and conditions attached by the Authority to that approval; or (b) in the case of action within subsection (3) (c), except as mentioned in paragraph (a) of this subsection or as otherwise authorised by law apart from this section.

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(6) An approval given by the Authority for the purposes of this section in the case of apparatus of any class or description specified in an order under this section may be limited - (a) to actions specified in the order; or (b) to a sub-class or description of apparatus within the class or description specified in the order. (7) Terms or conditions attached by the Authority to an approval under this section for manufacture or importation may relate to a period after as well as to the time of, or a period before, the manufacture or importation. (8) Approval under this section may be given, and any terms or conditions may be attached to it either in relation to prescribed apparatus or generally, by means of - (a) a notice in the Gazette; or (b) an instrument in writing issued to each person authorised, in relation to apparatus of any class or description to which the approval relates, to do anything for the time being restricted by the approval. (9) If the importation of apparatus of any class or description to which this section applies is for the time being restricted by an order under this section, a person appointed by the Authority, or the Comptroller of Customs, may require any person having custody or control of any apparatus of that class or description which is being or has been imported to furnish proof that the importation of the apparatus is or was not unlawful by virtue of this section; and if such proof is not furnished to the satisfaction of the Comptroller the apparatus is deemed, unless the contrary is proved, to be a prohibited import and liable to forfeiture under the customs laws. (10) A person who - (a) takes any action within subsection (3) or (b) in relation to any apparatus in contravention of subsection (5); (b) without reasonable excuse has any apparatus in his or her custody or control in contravention of that subsection; or (c) contravenes or fails to comply with any terms or conditions attached to any approval given by the Authority for the purposes of this section (whatever the action of which that approval relates), (without affecting liability to any penalty which may have been incurred under the customs laws) commits an offence and is liable on conviction to a fine of $6,000.00 and to imprisonment for 3 years. (11) An order made or approval given under this section must be published in the Gazette.

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(12) In this section "manufacture" includes construction by any method and the assembly of component parts.

Regulations as to radio-communication 50. (1) The Authority, with the approval of the Minister, may make regulations - (a) prescribing the things which are to be done in connection with the use of any radio-communication station or radio-communication apparatus, and, in particular, requiring the use of any such station or apparatus to cease if a prescribed person so demands; (b) imposing on a person to whom a radio-communication licence is issued with respect to any radio-communication station or radio-communication apparatus, or who is in possession or control of any radio communication station or radio-communication apparatus, obligations - (i) as to permitting and facilitating the inspection of the station and apparatus by a prescribed person; (ii) as to the condition in which the station and apparatus are to be kept; and

(iii) in the case of a station or apparatus for the importation, establishment, installation or use of which a radio-communication licence is necessary - as to the production to a prescribed person of the licence, or other prescribed evidence of the licensing of the station or apparatus;

(c) if sums are or may become due from the person to whom a radio- communication licence is issued after its issue or renewal - requiring the person to keep and produce the accounts and records specified in the regulations; and (d) requiring a person to whom a radio-communication licence which authorises the establishment or use of a radio-communication station has been issued, to exhibit at the station prescribed notices, and different provision may be made by such regulations for different classes of case. ( 2) Nothing in any regulations made under this section may require a person to concede a right of entry into a private dwelling-house for the purpose of permitting of facilitating the inspection of any apparatus not designed or adapted for transmission (as opposed to reception). (3) A person who contravenes any regulations made under this section, or causes or permits any radio-communication station or radio-communication apparatus to be

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used in contravention of any such regulations, commits an offence and is liable on conviction to a fine of $3,000 and to imprisonment for 18 months.

Regulations as to radiation of electro-magnetic energy 51. (1) The Authority, with the approval of the Minister, may make regulations - (a) prescribing the requirements to be complied with in the case of any apparatus to which this section applied if the apparatus is to be used;

(b) prescribing the requirements to be complied with in the case of any apparatus to which this section applies if the apparatus is to be sold otherwise than for export, offered or advertised for sale otherwise than for export, or let on hire or offered or advertised for letting on hire, by any person who in the course of business manufactures, assembles or imports such apparatus.

(2) The requirements in subsection (1) must be for the purpose of ensuring that the use of the apparatus does not cause undue interference with radio- communication, and may in particular include - (a) requirements as to the maximum intensity of electro-magnetic energy of any specified frequencies which may be radiated in any direction from the apparatus while it is being used; and (b) in the case of apparatus the power for which is supplied from electric lines - requirements as to the maximum electro-magnetic energy of any specified frequencies which may be injected into those lines by the apparatus, and different requirements may be prescribed for different circumstances and in relation to different classes or descriptions of apparatus, different districts or places and different times of use. (3) (a) The apparatus to which this section applies is any apparatus, whether or not designed or adapted for radio-communication, specified in the regulations, being apparatus generating, or designed to generate, or liable to generate fortuitously, electro-magnetic energy at frequencies of not more than 3,000,000 megacycles per second. (b) References in this subsection to apparatus include references to any form of electric line.

(4) It is not unlawful for a person to use any apparatus to which this section applies or to sell any such apparatus or offer or advertise it for sale or let it on hire or offer or advertise it for letting on hire by reason only that the apparatus does not comply with the requirements of any regulations made under this section, but the non-compliance is a ground for the giving of a notice under section 52 or section 53 as the case may be.

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Enforcement of electro-magnetic energy regulations 52. (1) If the Authority considers - (a) that any apparatus does not comply with a relevant requirement of regulations made under section 50 (1) (a); and (b) that either - (i) the use of the apparatus is likely to cause undue interference with any radio-communication used for the purposes of a safety of life service or for a purpose on which the safety of any person or of any ship, aircraft or vehicle may depend; or (ii) the use of the apparatus is likely to cause undue interference with any other radio-communication and in fact has caused or is causing such interference, although all reasonable steps to minimize interference have been taken in relation to the station or apparatus receiving the radio-communication,

the Authority may serve on the person in whose possession the apparatus is a notice in writing requiring that, after a date fixed by the notice, not less than 28 days from the day of the service of the notice, the apparatus must not be used by the person to whom the notice is given or by any other person or must only be used in the manner, at the times and in the circumstances specified in the notice.

(2) If the Authority is satisfied that the use of the apparatus in question is likely to cause undue interference with any radio-communication used for the purposes of a safety of life service or for a purpose on which the safety of any person or of any ship, aircraft or vehicle may depend, the date to be fixed by a notice under subsection (1) may be the date of the service of the notice. (3) A notice under subsection (1) may be revoked or varied by a subsequent notice in writing by the Authority served on the person in whose possession the apparatus then is, but if a notice under this subsection has the effect of imposing any additional restrictions on the use of the apparatus, the provisions of subsection (1) relating to the coming into force of notices applies in relation to the notice as if it had been a notice served under subsection(1).

(4) If notice has been given under subsection (1), any person who has possession of or any interest in the apparatus to which the notice relates may at any time (either before or after the date fixed by the notice), by notice in writing served on the Authority show good reason why the apparatus in question complies with requirements applicable to it under the regulations, and if the Authority is satisfied that -

(a) the apparatus in question so complies, it must revoke the notice; or (b) the requirements ought properly to be relaxed in relation to the apparatus,

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the Authority may revoke the notice or vary it in a manner it sees fit. (5) Nothing done under subsection (4) prevents a person from serving a further notice under that subsection or, if the Authority considers there has been a relevant change in the circumstances, prevents the Authority from giving a further notice under subsection (1) or subsection (2). (6) A revocation or variation under subsection (2) or (3) may be absolute, or may be conditional on selected steps being taken in relation to the apparatus, or on the apparatus being made to comply with specified requirements. (7) A person who, knowing that a notice of the Authority under this section is in force with respect to any apparatus, uses the apparatus, or causes or permits it to be used, in contravention of the notice, commits an offence and is liable on conviction to a fine of $6,000 and to imprisonment for 3 years.

Enforcement of regulations in respect of apparatus

53. (1) If the Authority is of opinion that any apparatus does not comply with a requirement applicable to it under regulations made under section 51 (1) (b), it may serve on any person who has manufactured, assembled or imported the apparatus in the course of business a notice in writing prohibiting the person from selling the apparatus, offering or advertising it for sale or letting it on hire.

(2) Subsections (2) to (5) of section 52 apply with necessary modifications for the

purposes of this section as they apply for the purposes of that section.

Regulations with respect to interference 54. (1) Subsection (1) of section 49 applies for the purposes of this section as it applies

for the purposes of that section.

(2) The Authority, with the approval of the Minister, may by regulations prescribe technical requirements to be complied with in the case of apparatus to which this section applies of any class or description specified in the regulations.

(3) The technical requirements prescribed in respect of any apparatus must be such

as appear to the Authority to be appropriate for the purpose of minimising so far as practicable the risk of interference, arising from the lawful use of any other apparatus, with any radio-communication apparatus to which the requirements apply (or any apparatus used in connection with it) and which is designed or adapted to receive.

(4) Subject to subsection (5), a person who in the course of business- (a) sells otherwise than for export or offers for sale otherwise than for export any apparatus which does not comply with the technical requirements applicable to it; (b) lets on hire or offers to let on hire any such apparatus; or

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(c) indicates (by display of the apparatus or by any form of advertisement) willingness to do, anything in relation to any such apparatus, anything that falls within paragraph (a) or (b), commits an offence and is liable on conviction to a fine of $10,000 and to imprisonment for 5 years. (5) In proceedings for an offence under this section brought against any person other

than one who in the course of business has manufactured, assembled or imported the apparatus to which the proceedings relate it is a defence for the accused to show that he or she did not know and could not with reasonable care have ascertained that the apparatus did not comply with the requirements in question.

Misleading messages and interception and disclosure of messages

55. A person who - (a) by means of radio-communication, sends or attempts to send any message which to the person’s knowledge is false or misleading and likely to prejudice the efficiency of a safety of life service or to endanger the safety of any person or of any ship, aircraft or vehicle, or which, to his or her knowledge, falsely suggests that a ship or aircraft is in distress or in need of assistance or is not in distress or in need of assistance; or

(b) otherwise than in accordance with section 90 and under the authority of the Minister or a public officer authorised by the Minister for the purpose - (i) uses any radio-communication station or apparatus with intent to obtain information as to the contents, sender or addressee of any message (whether sent by means of radio-communication or not) which neither the person using the station or apparatus nor any person on whose behalf he or she is acting is authorised to receive; or (ii) except in the course of legal proceedings or for the purpose of any report thereof, discloses any information as to the contents, sender or addressee of any such message, being information which would not have come to his or her knowledge but for the use of the radio-communication station or apparatus by that or another person, commits an offence and is liable on conviction to a fine of $3,000 and to 18months

imprisonment.

Deliberate interference 56. A person who uses a station or apparatus for the purpose of interfering with any radio- communication commits an offence and is liable on conviction to a fine of $4,000 and to imprisonment for 2 years.

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Onus of proof 57. (1) The occupier of a dwelling house or premises in which there is any radio- communication station is deemed to be in possession of the station unless he or she satisfies the court that he or she was not aware and could not with reasonable diligence have become aware of the presence in the dwelling house or premises of the radio-communication station in question.

(2) Any apparatus which, if fully assembled and in working order, would be a radio- communication station does not, unless completely dismantled, cease to be a radio-communication station by reason of the fact that it is temporarily incapable of transmitting or receiving Hertzian waves owing to a defect or the absence of some part.

Compounding of offences

58. (1) The Authority may, if satisfied that a person has committed an offence under this Act, accept from the person a sum of money to compound the offence. (2) A payment under this section must not exceed the maximum fine prescribed for the offence nor be less than half the amount of the maximum fine prescribed. (3) A payment under this section must be accepted only if the person suspected of having committed an offence has expressed consent in writing to the offence being dealt with under this section. (4) In proceedings against a person for an offence against this Act it is a good defence if the person proves to the satisfaction of the court that the offence has been compounded under this section.

Territorial application of this Part

59. (1) Subject to subsections (2) and (3), this Part applies - (a) to all stations and apparatus in or over, or for the time being in or over the Fiji Islands or its territorial sea; (b) subject to any limitations prescribed by regulations, to all stations and apparatus on board any ship or aircraft which is registered in the Fiji Islands but is not for the time being in or over the Fiji Islands or its territorial sea but was released from within the Fiji Islands or its territorial seas or from any vessel or aircraft registered in the Fiji Islands. (c) subject to any limitations prescribed by regulations, to all apparatus which is not in or over the Fiji Islands or its territorial sea but which was released from within the Fiji Islands or its territorial sea, or from any ship or aircraft registered in the Fiji Islands, and, without prejudice to the liability of any other person, if a contravention of the regulations or any order made under them occurs in relation to any station or

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apparatus on board or released from any ship or aircraft, the captain or the person for the time being in charge of the ship or aircraft commits an offence.

(2) The captain or person for the time being in charge of a ship or aircraft does not commit an offence by contravention of the regulations in relation to apparatus on board the ship or aircraft if the contravention consists only in the use by a passenger on board the ship or aircraft of apparatus not designed or adapted for transmission (as opposed to reception) which is not part of the radio-communication apparatus, if any, of the vessel or aircraft.

(3) The Authority may make regulations for regulating the use on board any ship or aircraft not registered in the Fiji Islands, while the ship or aircraft is within the limits of the Fiji Islands or itsterritorial sea, of a radio-communication station or apparatus on board the ship or aircraft, and the regulations may prescribe penalties for a contravention of them not exceeding a fine of $6,000, and for the forfeiture of any radio-communication station or apparatus in respect of which the offence is committed. (4) Except as stated in this section, nothing in this Part operates to impose any prohibition or restriction on persons using any radio-communication station or apparatus on board any ship or aircraft.

PART 5 - TELECOMMUNICATION

Licensing of telecommunication systems

60. (1) Subject to section 61, a person who operates a telecommunication system within the Fiji Islands commits an offence unless the person is authorised to operate the system by a licence granted under this Act. (2) A person who operates a telecommunications system commits an offence if- (a) there is connected to the system- (i) any other telecommunication system; or (ii) any apparatus, which is not authorised by the person’s licence to be so connected; or (b) there are provided by means of the system any telecommunication services which are not authorised by the licence to be so provided. (3) A person who commits an offence under this section is liable to a fine of $10,000 and to imprisonment for 5 years.

(4) If 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 commits the offence by virtue of this subsection whether or not proceedings are taken against the first-mentioned person.

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(5) In proceedings for an offence under this section it is a defence for the person charged to prove that he or she took all reasonable steps and exercised all due diligence to avoid committing the offence. (6) Proceedings must not be instituted in respect of an offence under this section except by or on behalf of the Authority.

Exceptions 61. (1) Section 60(1) is not contravened by the operation by a broadcasting station of a telecommunication system if every conveyance made by it is either - (a) a transmission by radio-communication for general reception of sounds, visual images or signals mentioned in paragraph (iii) of the definition of "telecommunication system"; 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 60(1) is not contravened by-

(a) the operating of a telecommunication system if the only agency involved in the conveyance of things 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 operating by a person of a telecommunication system which is not connected to another telecommunication system (other than a public telecommunication system or a telecommunication mentioned in subsection (1)) and in which all the apparatus is situated either - (i) on a single set of premises in single occupation; or (ii) in a vehicle, ship or aircraft or in 2 or more vehicles, ships or aircraft 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 2 or more mobile radio-communication stations; and

(ii) all the stations and apparatus that are required to be the subject of licences under section 45 are so licensed and are being used in compliance with the terms, conditions and limitations of that licence.

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Power to licence telecommunication systems 62. (1) A licence may be granted by the Authority for the operating of any telecommunication system specified in the licence or of a description so specified. (2) A licence granted under this section must be in writing and, unless previously revoked in accordance with any provision contained in the licence, continues in force for the period 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 the Fiji Islands, and subject to any conditions, exceptions and other limitations the Authority 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, of any telecommunication services specified in the licence or of a description so specified.

(5) A licence granted under this section may include -

(a) conditions (either relating to the operating of a telecommunication system to which the licence relates or otherwise) that appear to the Authority to be necessary or expedient;

(b) conditions requiring the making to the Authority of a payment on the grant

of the licence or of payments during the currency of the licence, or of both, of an amount or amounts determined by or under the licence; and

(c) conditions requiring any person who is authorised by the licence to operate a telecommunication system to furnish to the Authority, in a manner and at times it reasonably requires, any documents, accounts estimates, returns, financial and capital performance data or other information the Authority requires for the purpose of performing its functions. (6) Without limiting subsection (5) (a), conditions included by virtue of that paragraph in a licence granted to a particular person may require the person - (a) to comply with any direction given by the Authority as to matters specified in the licence or of a description so specified;

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(b) unless the Authority consents to the person doing or not doing them, not to do, or to do, things specified in the licence or of a description so specified; and (c) to refer to determination by the Authority questions arising under the licence specified in the licence or of a description so specified.

(7) A licence granted under this section otherwise than to a particular person must be published in a manner the Authority considers appropriate for bringing it to the attention of the persons for whose benefit it is intended.

(8) If a licence granted to a particular person requires the person to operate 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, is for the purposes of this Act authorised by the licence to run the system. (9) Nothing in this section affects any other written law which regulates or provides for the licensing of any broadcasting service provided by a broadcasting station, and the requirements of this section are in addition to the requirements of that other law. (10) Nothing in this section or in any licence granted under this section affects section 45, and this section is in addition to that section. (11) Subsections (3) and (4) of section 63 apply in respect of any licence which confers upon a telecommunications operator an exclusive privilege in respect of any telecommunication service as if such licence were a licence to which section 63 applies.

Public telecommunication systems 63. (1) The Authority may by order designate as a public telecommunication system any telecommunication system the operating of which is authorised by a licence to which this section applies. (2) Before granting a licence to which this section applies, the Authority must give notice - (a) stating that it proposes to grant the licence and setting out its effect; (b) stating the reasons why it proposes to grant the licence; and (c) specifying the time (not 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 must consider any representations or objections which are duly made and not withdrawn.

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(3) A notice under subsection (2) must be published in the Gazette and in any other manner the Authority considers appropriate for bringing the matters to which the notice relates to the attention of persons likely to be affected by them. (4) If a telecommunication system is designated as a public telecommunication system under subsection (1), a licence granted under section 62 must include conditions which require the licensee - (a) to provide telecommunication services specified in the licence or of a description so specified; (b) to permit the provision, by means of a telecommunication system to which the licence relates, of services specified in the licence or of a description so specified; (c) to guarantee specified performance standards in relation to customer service; (d) not to show undue preference to, or to exercise undue discrimination against, particular persons or persons of any class or description (including persons in rural areas) as respects any service provided, connection made or permission given pursuant to conditions mentioned in paragraphs (a), (b) and (c) (whether in respect of the charges or other terms or conditions applied or otherwise); (e) to waive the charge or to give a rebate for any service that is interrupted for more than 5 days from the time that the operator had knowledge of the interruption. (5) It is not undue discrimination within the meaning of subsection (4)(d) for a licensee to refuse to supply telecommunication services to the premises of a person who - (a) owes more than $200 to the licensee; (b) lives in the same premises as a person referred to in paragraph (a); or (c) is not lawfully entitled to be or to remain in occupation of the premises.

(6) For the purpose of subsection (5) (a), an applicant is not to be regarded as owing money, if the amount is in respect of a credit transaction, until the person has been served with a statement of account in respect of any amount owed and the period, not less than 7 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 30 days after service of the statement has elapsed and the person has failed to pay.

(7) For the purposes of subsection (6), a statement of account is deemed to have been served on a person if it is delivered to the last address at which the person has advised the licensee to deliver statements of account, or, if no such advice has been given, to the last known address of the person.

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Telecommunications code

64. (1) The telecommunications code set out in Schedule 2 has effect in relation to a person if it is applied to the person by a licence granted by the Authority under section 62 authorising that person to operate a telecommunication system. (2) The telecommunications code does not apply to a person authorised by a licence under section 62 to operate a telecommunication system, unless - (a) the licence is a licence to which section 62 applies; or (b) it appears to the Authority that - (i) the operating of the system will benefit the public; and (ii) it is not practicable for the system to be operated unless the code applies. (3) If the telecommunications code is applied to a person by a licence under section 62 it has effect subject to any exceptions and conditions included in the licence which qualify the rights exercisable by the person by virtue of the code. (4) Without limiting subsection (3), the exceptions and conditions contained in a licence may include any exceptions and conditions the Authority considers necessary or expedient to secure - (a) that the physical environment is protected and 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 ofrights 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 a person so specified or of a description so specified.

(5) A licence under section 62 which applies the telecommunications code to any person in relation to any part of the Fiji Islands must include a condition requiring the person to make copies of - (a) any exceptions and conditions subject to which the telecommunications code has effect as so applied; and (b) any direction given pursuant to subsection (4), available for inspection by members of the public free of charge at a place specified in the licence or of a description so specified.

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(6) Before granting a licence which applies the telecommunications code to a

particular person in relation to any part of the Fiji Islands, the Authority must publish a notice -

(a) stating that it proposes to apply the code to that person in relation to that part and setting out the effect of any exceptions and conditions subject to which it proposes that the code should so apply; (b) stating the reasons why it proposes to apply the code to that person in relation to that part and why it proposes that the code as so applied should have effect subject to exceptions and conditions (if any); and (c) specifying the time (not 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 and any proposed exceptions and conditions may be made, and must reconsider its proposals in the light of any representations or objections which are duly made and not withdrawn. (7) If the Authority, having pursuant to subjection (6) reconsidered any proposal, grants a licence applying the telecommunications code to any person in relation to any part of the Fiji Islands, it must on granting the licence publish a further notice -

(a) stating that the code has been applied to that person in relation to that part and setting out the effect of any exceptions or conditions subject to which the code has effect as so applied; and

(b) stating the reasons why the code has been so applied and why the code as so applied has effect subject to those exceptions and conditions (if any). (8) If the Authority has granted a licence which applies the telecommunications code to a particular person in relation to any part of the Fiji Islands, it may - (a) with the consent of that person; or (b) if it is necessary or expedient to do so for the purpose mentioned in subsection (4), 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 telecommunication code has effect as applied to any person in relation to any part of the Fiji Islands, the Authority must publish a notice - (a) stating that it proposes to make the modifications and setting out their effect;

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(b) stating the reasons why it proposes to make the modifications; and (c) specifying the time (not less than 28 days from the date of publication of a notice) within which representations or objections with respect to the proposed modification may be made, and must reconsider its proposals in the light of any representations or objections which are duly made and not withdrawn.

(10) If the Authority, having pursuant to subsection (9) reconsidered any proposal, modifies the exceptions and conditions subject to which the telecommunications code has effect as applied to any person in relation to any part of the Fiji Islands, it must 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 must be published in the Gazette and in any other manner the Authority considers appropriate for bringing the matters to which the notice relate to the attention of persons likely to be affected by them.

Modification of licence conditions 65. (1) Subject to this section, the Authority may modify the conditions of a licence granted under this Act. (2) Before making modifications under this section, the Authority must give notice - (a) stating that it proposes to make the modifications and setting out the effects; (b) stating the reasons why it proposes to make the modifications; and (c) specifying the time (not less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modification may be made, and must consider any representations or objections which are duly made and not withdrawn. (3) A notice under subsection (2) must be published in a manner the Authority considers appropriate for the purpose of bringing the matters to which the notice relates to attention of persons likely to be affected by them, and in any event - (a) in the case of a licence granted to a particular person - by sending a copy of the notice to that person;

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(b) in the case of a licence to which section 62 applies - by publication in the Gazette. (4) Subject to subsection (5) - (a) in the case of a licence granted to a particular person - the Authority must not make the modification except with the consent of that persons; and (b) in the case of a licence granted to all persons or to a person of a class - the Authority must not make the modification unless either - (i) no representations or objections are made by a person authorised by the licensee to operate a telecommunication system; or (ii) any representation or objection made by such person is withdrawn. (5) If a notice under subsection (2) specifies that the Authority proposes to make modifications to remedy or prevent a matter which - (a) operates or is expected to operate against the policy of this Act; (b) relates 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 this Act to operate a telecommunication system,

then, even if in the case of a particular person that person does not consent or representations or objections made by persons authorised by the licensee to operate telecommunication systems are not withdrawn, the Authority, after considering such representations and objections, if satisfied that a specified matter operates or will operate against the policy of this Act and can be remedied or prevented by modifications, may modify the conditions of a licence.

(6) If the Authority modifies the conditions of a licence under subsection (5), it must within 14 days publish a report setting out - (a) its conclusions in respect of the matter specified in its notice referred to in subsection (5), together with its reasons for those conclusions, so as to facilitate proper understanding of those conclusions; (b) the adverse effects which the matter has or are expected to have; and (c) how those affects will be remedied or prevented by the modifications made. (7) A copy of a report under subsection (6) -

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(a) subject to subsection (8), must be published by the Authority in a manner it considers appropriate for bringing the report to the attention of persons likely to be affected by it; and (b) must be sent by the Authority, in the case of a licence granted to a particular person, to that person. (8) If it appears to the Authority that the publication of a matter in a report under subsection (6) would not advance the policy of this Act or would be against the commercial interests of any person, it may exclude such matter from the report published under subsection (7). (9) Nothing in this section prevents the Authority specifying in any licence how the licence may be modified, and making any modification accordingly.

Enforcement of licence conditions 66. (1) If the Authority - (a) is satisfied that a telecommunications operator is contravening, has contravened or is likely to contravene any of the conditions of licence and that the contravention or apprehended contravention is not trivial in nature;

(b) notifies the operator in writing that it is so satisfied, specifying the condition and the act or omission which, in its opinion, constitute or would constitute a contravention of it; and

(c) requires the operator to remedy the contravention in a period (not less than 28 days) the Authority specifies in the notification, then, if the telecommunications operator fails to remedy the contravention within that period or to show good reason why it should not do so, the failure is a breach of a duty to any person affected by it and is a tort committed against, and is actionable at the suit of, any person who is caused loss or damage by it and the operator is liable to pay to such person compensation determined by a court. (2) Liability under subsection (1) cannot be removed, reduced or modified by an agreement entered into between the telecommunications operator and the person affected, or between any person acting on behalf of either of them, before the expiration of the period specified under subsection (1). (3) In proceedings against a person pursuant subsection (1), it is a defence to prove that the person took all reasonable steps and used all due diligence to remedy the contravention within the period specified. (4) If a contravention amounts to a breach of duty under subsection (1), any act which -

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(a) 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 (b) is done wholly or partly for the purposes of achieving that result, is 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). (5) Without prejudice to any right which a person may have by virtue of subsection (1) to bring proceedings in respect of a failure to comply with a notice issued under subsection (1), compliance with any such notice is enforceable by civil proceedings by the Authority for injunction or other appropriate relief. (6) If in civil proceedings brought against a carrier by the Authority under subsection (1) the court is of opinion that there has been a contravention of a condition of a licence, which contravention is not of a trivial nature, and that there is or was no good reason for the carrier not to remedy the contravention in the manner and within the period specified in notification, the court must, on the application of the Authority, in addition to any injunction or other appropriate relief it grants, require the carrier to pay to the Authority a penalty not exceeding $1,000. (7) In this section "contravention," in relation to a condition of a licence, includes a failure to comply with the condition. (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 67. (1) If a licence granted under section 62 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 Authority. (2) A person applying for an approval under this section may be required by the Authority to comply with any requirements the Authority thinks 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 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

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person who is so specified or is of a description so specified, and any such condition may impose on the person to whom approval is given a requirement from time to time to satisfy any person specified by the Authority with respect to any matter. (5) Nothing in this section may preclude a person (not being the Authority) by whom any matter falls to be determined for the purposes of any requirement imposed in pursuance of subsection (4) from charging any fee in respect of the carrying out of any test or other assessment made by the person. (6) A power conferred by this section to give an approval includes power to vary or withdraw an approval given in exercise of that power.

(7) In this section "relevant operations" means the installation, 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 62 relates.

Approval of apparatus

68. (1) If a licence granted under section 62 includes provisions which are framed by reference to apparatus for the time being approved under this section for connection to a telecommunication system to which the licence relates, then, for the purpose of those provisions, apparatus may be approved by the Authority for connection to that system. (2) A person applying for an approval under this section may be required by the Authority to comply with any requirements the Authority thinks 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 telecommunication system or for the purposes of a telecommunication system 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 purpose 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) A person other than the Authority who determines any matter for the purposes of a requirement under subsection (2) or (4) may charge a fee for carrying out a test or other assessment needed for the determination.

(6) The Authority may designate standards to which apparatus of a description specified in the designation must conform in order to be approved for connection to

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a telecommunication system so specified or of a description so specified, and a standard so designated may apply subject to any exceptions 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 purpose so specified, as conforming to the standard to which the designation relates. (8) Before designating a standard under this section, the Authority must give notice - (a) stating that it proposes to make the designation and setting out its effect; (b) stating any conditions which the Authority proposes to specify in the designation; and (c) specifying the time (not 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 must consider any representations or objections which are duly made and not withdrawn. (9) A notice under subsection (8) must be given by sending a copy of it to the person running the system and any other person the Authority considers appropriate. (10) A 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) A person who connects to a telecommunications system referred to in subsection (1) any apparatus which is of, or similar to, a type which under the provisions of the licence in respect of that telecommunication system must be approved under this section but is not so approved, commits an offence and is liable on conviction - (a) if the apparatus is a telephone -to a fine of $300; (b) if the apparatus is not a telephone - to a fine of $3,000. (12) 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 service provided by means of a telecommunication system.

Public registers 69. (1) The Authority must keep at premises and in a form it determines - (a) a register of licences granted under section 62;

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(b) a register of notifications issued under section 68; (c) a register of approvals of contractors given under section 79; and (d) a register of approvals given and designations made under section 68. (2) The Authority must cause to be entered in the register kept under subsection (1) (a) particulars of - (a) every licence granted under section 62, every modification or revocation of such a licence and of every direction or consent given or determination made in respect of or under such a licence; and (b) every determination made by the Authority that it is satisfied that a contravention or apprehended contravention of a licence is of a trivial nature. (3) The Authority must cause particulars of every approval under section 67, and of every variation or withdrawal of such an approval, to be entered in the register kept under subsection (1) (c). (4) The Authority must cause particulars of every approval and designation under section 68, and of every variation or withdrawal of such an approval or designation, to be entered in the register kept under subsection (1) (d). (5) If it appears to the Authority that the entry of any particulars in a register would be against the commercial interest of any person, it may decide not to enter them in the register . (6) The registers must be open to public inspection during the hours, and subject to payment of any fee, prescribed by the Authority. (7) Any person may, on payment of the prescribed fee, require the Authority

to supply a copy of or an extract from any part of a register, certified by the Authority to be a true copy or extract.

Information on telecommunication apparatus

70. (1) If it appears to the Authority expedient that any description of telecommunication apparatus should be marked with or accompanied by any information or instruction relating to apparatus or its connection or use, the Authority may - (a) by order impose requirements for securing that apparatus of that description is so marked or accompanied; (b) regulate or prohibit the supply of any such apparatus with respect to which the requirements are not satisfied, and the requirements may extend to the form and manner in which the information or instruction is to be given.

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(2) If an order under this section is in force with respect to telecommunication apparatus of any description, a person who, in the course of trade or business, supplies or offers to supply telecommunication apparatus of that description in contravention of the order commits an offence and is liable on conviction to a fine of $3,000. (3) Subsections (4) to (6) of section 60 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 to be also displayed near the apparatus. (5) For the purpose of this section a person exposing telecommunication apparatus for supply or having telecommunication apparatus in its possession for supply is deemed to offer to supply it.

Information to be given in advertisements 71. (1) If the Authority considers that a type of advertisement for telecommunication apparatus should contain or refer to any information relating to the apparatus or its connection or use, the Authority may by order impose requirements as to the inclusion of such information, or an indication of the means by which it may be obtained, in advertisements of that type. (2) A person who publishes an advertisement for any telecommunication apparatus to be supplied in the course of trade or business which does not comply with a requirement under subsection (1) commits an offence and is liable on conviction to a fine of $1,000. (3) Subsections (4) to (6) of section 60 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 is a defence for the person charged to prove that it - (a) is a person whose business is to publish or arrange for the publication of a advertisements; (b) received the advertisement for publication in the ordinary course of business; and (c) did not know and had no reason to suspect that publication would amount to an offence under this section.

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(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.

Power to make test purchases 72. (1) The Authority or the Chief Inspector of Trade Measurement may purchase telecommunication apparatus for the purpose of ascertaining whether sections 70 and 71 and orders made under those sections are being complied with. (2) The Authority and the Chief Inspector of Trade Measurement each has power to enforce sections 70 and 71.

Compulsory acquisition of land 73. (1) Subject to subsection (2), the Minister may, after consultation with the Authority, authorise a carrier to acquire compulsorily any land in the Fiji Islands which is or is likely to be required by the carrier, for or in connection with, the establishment or operating of the carrier's telecommunication system. (2) An order must not be made authorising a compulsory acquisition by a carrier except with the consent of the Cabinet, and such consent must be given only if the Cabinet is satisfied that the land cannot be acquired by agreement. (3) The State Acquisition of Lands Act (Cap. 135) applies to a compulsory acquisition under this section and, for the purposes of that Act, the purposes for which the carrier requires the land are public purposes. (4) 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. (5) If a carrier has acquired any land under this section, it must 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 74. (1) A person nominated by a carrier and duly authorised in writing by the Authority

may, at any reasonable time, in connection with any works authorised by or under this Act, enter upon, 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, so as to to ascertain whether the land would be suitable for use by the carrier for, or in connection with, the establishment or operation of the carrier's telecommunication system.

(2) Notice of a carrier’s intention to exercise the power conferred by this section in relation to any land must be served on the owner and occupier of the land and any other interested party at least 28 days before the power is exercised.

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(3) In the exercising of the powers given by this section - (a) the carrier, does not acquire any right other than that of user of any land through, over or under which, are carried out the survey and the taking of level; and

(b) if any damage is caused to land or to chattels, the carrier must pay to any person who has an interest in the land or chattels, and will suffer loss thereby, reasonable compensation as agreed or as determined by a court of competent jurisdiction.

(4) For the purpose of subsection (1), notice is taken to have been served on the owners of 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, registered as the native owner of the land.

Grants and loans to promote rural telecommunications 75. The Minister responsible for finance may at the request of the Minister, acting on the advice of the Authority, make grants or loans to a carrier - (a) for the purposes of establishing, developing, working and maintaining a telecommunication system in a rural area; or (b) for defraying or contributing towards any expenses or losses incurred by the carrier in respect of such matters.

Contributions by local authorities 76. (1) If a local authority considers that it would be for the benefit of the whole or any part

of its area that - (a) additional telecommunication facilities should be provided; or (b) existing telecommunication facilities should continue to be provided by any person, whether within or outside the area to be benefited, the local authority may undertake to pay to that person any loss that the person sustains by reason of the provision or continued provision of those facilities. (2) In this section" local authority" has the same meaning as in the Town Planning Act (Cap.139).

Fraudulent use of telecommunication system 77. A person who dishonestly obtains a service provided by means of a telecommunication system licensed under section 60 with intent to avoid payment of any charge applicable to the provision of that service commits an offence and is liable on conviction to a fine of $2,000 and to imprisonment for 1 year.

Improper use of public telecommunication system 78. (1) The Authority and all holders of licences under this Act must, in the exercise of their powers and rights under this Act, do their best to prevent telecommunications

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networks and facilities from being used in, or in relation to, the commission of an offence against the law of the Fiji Islands. (2) The Authority and all holders of licences under this Act must give officers and authorities of the State such help as is reasonably necessary and lawful for enforcing the criminal law and safeguarding national security. (3) A person who - (a) uses a public telecommunication system for the transmission or reception

of a message or other matter grossly offensive or of an indecent, obscene or menacing character, for the purpose of causing annoyance, inconvenience or anxiety to another; or

(b) makes use of a public telecommunications system for the transmission of

a message which is of a nature that is likely to endanger or compromise public order or national security,

commit an offence and is liable on conviction to a fine of $500 and to imprisonment for 3 months.

Modification of messages 79. A person engaged in the running of a public telecommunication system who, assist in the course of duty, intentionally modifies or interferes with the contents of a message by means of that system, commits an offence and is liable on conviction to a fine of $6,000 and to imprisonment for 3 years.

Interception and disclosure of messages 80. (1) A person engaged in the running of a public telecommunication system who, except in the course of 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, commits an offence. (2) A person operating a public telecommunication system who, except in the course of duty, intentionally discloses to any person the contents of a statement of account specifying the telecommunication services provided for any other person by means of that system commits an offence. (3) Subsection (1) does not apply to anything done in obedience to awritten order of the Minister. (4) Subsection (1) (b) and subsection (2) do not apply to any disclosure in connection with the investigation of any criminal offence or for the purpose of any criminal proceedings.

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(5) A person who commits an offence under this section is liable on conviction to a fine of $6,000 and to imprisonment for 3 years.

Interrupting the business of public telecommunications carrier 81. A person engaged in the business of a carrier may require any person who is intentionally obstructing the business to leave any premises used for the purposes of the business and, if that person refuses or fails to comply with the requirement, he or she commits an offence and is liable on conviction to a fine of $1,000 and may be removed by any police officer at the request of the first person.

Tampering with plant of telecommunication system 82. A person who, intending - (a) to prevent or obstruct the transmission or delivery of any message; (b) to intercept or learn the contents of any message; or (c) to commit mischief, damages, removes, tampers with, touches or in any way interferes with any telecommunication apparatus or telecommunication line, post or thing which is part of or used in or about any telecommunication system or in the use of a telecommunication system, commits an offence and is liable on conviction to a fine of $6,000 and to imprisonment for 3 years.

Trespass and wilful obstruction of a telecommunications officer

83. (1) A person who - (a) without permission of the telecommunications officer in charge enters the signal room of a telecommunication office 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 leave the room or enclosure on being requested to do so by a telecommunications officer or other person employed there; or (d) wilfully obstructs any such officer or employee in the performance of their duty, commits an offence and is liable on conviction to a fine of $1,000 and to imprisonment for 6 months. (2) A person who does any of the acts mentioned in subsection (1) with the intention of unlawfully learning the contents of any message, or of committing any offence punishable under this Act, is liable (in addition to the penalty prescribed by

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subsection (1)) to a further fine of $1,000 and to further imprisonment for 6 months.

Detaining or altering a message or revealing its contents 84. A telecommunications officer, or any person who has official duties connected with any office used as a telecommunication office of the Government or of telecommunications operator, who - (a) wilfully secretes, makes away with or alters any message which he or she has received for transmission or delivery; or (b) wilfully, and otherwise than in obedience to an order of the Minister or of an officer especially authorised by the Minister to make the order, omits to transmit or detains any message or any part of a message, commits an offence and is liable on conviction to a fine of $6,000 and to imprisonment for 3 years.

Impeding or delaying messages

85. A telecommunications officer, or any person who has duties connected with any office which is used as a telecommunication office of the Government or of a telecommunications operator, who - (a) commits, any act of drunkenness, carelessness, or other misconduct whereby the correct transmission or the delivery of any message is impeded or delayed; or (b) loiters or delays in the transmission or delivery of any message, commits an offence and is liable on conviction to a fine of $500 and to imprisonment for 3 months.

Fraudulent retention of messages 86. A person who - (a) fraudulently retains, or wilfully hides, makes away with or detains a message sent by means of a telecommunications system 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, commits an offence and is liable on conviction to a fine of $6,000 and to imprisonment for 3 years.

Forgery of telegrams 87. (1) A person who with intent to deceive - (a) forges or wilfully and without due authority alters a telegram; or (b) issues a telegram knowing it to be either forged or wilfully and without due authority altered,

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commits an offence and is liable on conviction to a fine of $6,000 and to I imprisonment for 3 years. (2) For the purposes of this section "telegram" means a written or printed communication sent to a telecommunication office for transmission by telecommunication and includes any facsimile or telex transmission.

Fraudulently transmitting messages 88. A telecommunication officer who uses a telecommunication system for a purpose for which a charge payable to his or her employer has not been paid, intending thereby to defraud the employer (being a person licensed under this Act to operate that system) commits an offence and is liable on conviction to a fine of $1,000 and to imprisonment for 6 months.

Unlicensed radio-communication or telecommunication 89. A person who, knowing or having reason to believe that a radio-communication station or telecommunication system is being run in contravention of this Act - (a) transmits or receives any messages by such station or system; (b) performs any service incidental thereto; (c) delivers any message for transmission by such station or system; or (d) accepts delivery of any message sent thereby, commits an offence and is liable on conviction to a fine of $1,000.

PART 6 - MISCELLANEOUS

Power to require production of messages 90. If it appears to the Minister expedient to do so in the public interest, he or she may by order require any person running a radio-communication station or telecommunication system to produce to the Minister, or to any person named in the order, the originals and transcripts of all messages or of messages of any specified class or description or of messages sent from or addressed to any specified person or place by means of such radio-communication station or telecommunication system and all other papers relating to such messages.

Directions in the interests of national security 91. (1) The Minister may, after consultation with a person to whom this section applies, give to that person such directions of a general character as appear to the Minister to be requisite or expedient in the interests of national security or of relations with the government of a country or territory outside the Fiji Islands.

(2) If it appears to the Minister expedient to do so in the interests of national security or of relations with the government of a country or territory outside the Fiji Islands,

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the Minister may, after consultation with a person to whom this section applies, give to that person a direction to do, or not to do, a particular thing specified in the direction.

(3) A person to whom this section applies must give effect to any direction given by the Minister under this section notwithstanding any other duty imposed on the person by or under this Act. (4) A direction given under this section must be published in the Gazette. (5) A person must not disclose anything done by virtue of this section if the Minister has notified the person that he or she is of the opinion that disclosure of that thing is against the interests of national security of relations with the government of a country or territory outside the Fiji Islands, or the commercial interests of some other person.

(6) The Minister may, with the approval of the Minister responsible for finance, make a grant to a carrier for the purpose of defraying or contributing towards any losses the carrier sustains by complying with directions given under this section.

Prohibitions and restrictions applying to lessees

92. (1) Subject to subsection (4), if any provision contained in a lease to which this section applies, or in any agreement made with respect to premises to which such a lease relates, has the effect of imposing on the lessee any prohibition or restriction with respect to any of the matters falling within subsection (3), the provision has effect in relation to things done - (a) inside a building, or part of a building, occupied by the lessee under the lease, or (b) for purposes connected with the provision to the lessee by any telecommunications operator of any telecommunication services, as if the prohibition or restriction applied only where the lessor has not given consent in relation to the matter in question and as if the lessor were required not to withhold that consent unreasonably. (2) If a provision of a lease or agreement imposes ( by virtue of this section or otherwise) a requirement on the lessor under a lease not to withhold consent unreasonably in relation to any matter falling within subsection (3), the question whether that consent is unreasonably withheld must be determined having regard to all the circumstances and to the principle that no person should unreasonably be denied access to a telecommunication system. (3) The matters falling within this subsection are - (a) the operating of relevant telecommunication systems;

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(b) the connection of any telecommunication apparatus to a relevant telecommunication system or of relevant telecommunication stems to each other; and (c) the installation, maintenance, adjustment, repair, alteration or use, for purposes connected with the operations of a relevant telecommunication system, of any telecommunication apparatus. (4) The Authority may by order provide that subsection (1) does not apply in relation to the cases, prohibitions or restrictions specified in the order, or of a description so specified. (5) This section applies to any lease for a term of 1 year or more. (6) In this section- "alteration" and "telecommunication apparatus" have the same meanings as in Schedule 2; "lease" includes any leasehold tenancy (whether in the nature of a head lease, sub-lease or under lease) and any agreement to grant such a tenancy, and cognate expressions and references to the grant of a lease are to be construed accordingly; "relevant telecommunication system" means a public telecommunication system or a telecommunication system specified for the purposes of this section in an order made by the Authority, or a telecommunication system which is, or is to be, connected to a public telecommunication system or to a system so specified.

Alteration of public road 93. (1) If in pursuance of a written law or an order made under a law a public road is

stopped up, closed, changed or diverted and immediately before the date on which the stoppage or diversion became operative there was under, in, on, over, along or across the road any telecommunication apparatus kept installed for the purposes of a telecommunications code system, the operator of the system has the same powers in respect of the telecommunication apparatus as if the stoppage or diversion had not become operative; but any person entitled to land over which the public road subsisted is entitled to require the alteration of the apparatus.

(2) If under a written law or order as mentioned in subsection (1) the improvement of a

public road is proposed and, immediately before the date on which the proposal becomes operative, there was under, in, on, over, along or across the public road any telecommunication apparatus kept installed for the purposes of a telecommunications code system, the State or the municipal authority is entitled to require the alteration of the apparatus.

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(3) Paragraph 1(2) of the telecommunications code applies in relation to any entitlement conferred by this section to require the alteration, moving or replacement of any telecommunication apparatus as it applies in relation to an entitlement to require the removal of any such apparatus. (4) In this section "telecommunications code system" means a telecommunications system operated under a telecommunications licence to which the telecommunications code has been applied under section 64.

Orders

94. An order made by the Authority under this Act must be published in the Gazette as soon as practicable after being made.

Arbitration

95. The provisions of this Act do not affect the provisions of the Arbitration Act (Cap. 38).

Fair trading 96. (1) Subject to subsection (2), the provisions of this Act apply in addition to the provisions of the Fair Trading Decree 1992. (2) Sections 27 to 33 of the Fair Trading Decree 1992 do not apply in relation to any telecommunication matter that is within the powers of the Authority.

Power to make regulations 97. (1) The Authority with the approval of the Minister may make regulations prescribing any matter required or permitted by this Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) The regulation-making powers in this section do not limit regulation-making powers in any other section of this Act. (3) Regulations made under this Act may prescribe fees and other charges for any matter permitted or required to be done under this Act. (4) Regulations made under this section may prescribe penalties for a contravention of the regulations not exceeding a fine of $6,000 and imprisonment for 2 years together with, in the case of a continuing offence, a further fine of $200 for each day during which the offence continues. (5) Any regulations made with respect to the conduct and discipline of officers and employees of the Authority must provide for an opportunity to be given to the officer or employee concerned to make representations before a decision is arrived at by the Board. (6) In the absence of legislation relevant to a specific radio-communication or telecommunication matter the regulations or standards established by the International Telecommunications Union apply to the matter.

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Entry and search

98. (1) A Resident Magistrate who is satisfied by information on oath that - (a) there is reasonable ground for suspecting that an offence under this Act has been or is being committed; and (b) evidence of the commission of the offence is to be found on any premises specified in the information, or in any vehicle, vessel or aircraft so specified, may grant a search warrant authorising any person or persons designated by the Authority and named in the warrant, with any police officer, to enter, at any time within 1 month from the date of the warrant, the premises specified in the information or, as the case may be, the vehicle, ship or aircraft so specified and any premises upon which it is, and to search the premises, or, as the case may be, the vehicle, ship or aircraft, and examine and test any telecommunication or radio-communication station or apparatus found on the premises, ship, vehicle or aircraft. (2) A Resident Magistrate who is satisfied, upon an application supported by sworn evidence, that - (a) there is reasonable ground for believing that, on any specified premises or in any specified vessel, aircraft or vehicle, a station or apparatus to which section 51 applies is to be found which does not comply with the requirements applicable to it under regulations made under that section; (b) it is necessary to enter those premises, or that vessel, aircraft or vehicle, for the purpose of obtaining information to enable the Authority to decide whether or not to serve a notice under section 52 or section 53; and (c) access to the premises, vessel, aircraft or vehicle for the purpose of obtaining such information has, within 7 days before the date of the application to the magistrate, been demanded by a person authorised by the Authority and producing sufficient documentary evidence of his or her identity and authority, but has been refused, may issue a written authorisation empowering any person or persons designated

by the Authority and named in the authorisation, with any police officer, to enter the premises or, as the case may be, the ship, aircraft or vehicle and any premises on which it is and to search the premises, ship, aircraft or vehicle with a view to discovering whether any such apparatus is there, and, if any such apparatus is found there, to examine and test it with a view to obtaining information as aforesaid.

(3) An authorisation must not be issued under subsection (2) unless it is shown to the Resident Magistrate that either -

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(a) the Authority is satisfied that there is reasonable ground for believing that the use of the apparatus in question is likely to cause undue interference with any radio-communication used for the purposes of any safety of life services or for any purpose on which the safety or any person or of any vessel, aircraft or vehicle may depend; or (b) not less than 7 days' notice of the demand for access was served on the occupier of the premises, or, as the case may be, the person in possession or the person in charge of the vessel, aircraft or vehicle, that the demand was made at a reasonable hour and that it was unreasonably refused. (4) If under this section a person has a right to examine and test any station or apparatus on any premises or in any vessel, aircraft or vehicle, it is the duty of any person who is on the premises, or is in charge of, or in or in attendance on, the vessel, aircraft or vehicle, to give the person such assistance as he or she reasonably requires in the examination or testing of the station or apparatus. (5) A person who - (a) obstructs any person in the exercise of the powers conferred under this section; (b) fails or refuses to give to any such person any assistance which he or she is under this section under a duty to give; or (c) discloses, otherwise than for the purposes of this Act or any report of proceedings under it, any information obtained by means of the exercise of powers under this Act, being information with regard to any manufacturing process or trade secret, commits an offence and is liable on conviction to a fine of $10,000 and to imprisonment for 5 years.

Seizure of property 99. (1) This section applies to offences committed against section 47, section 60 or Part 4. (2) If - (a) a search warrant is granted under section 98; and (b) the suspected offence (or any of the suspected offences) is an offence to which this section applies, the warrant may authorise the person or persons named in it to seize and detain, for the purposes of any relevant proceedings, any station, apparatus or other thing found in the course of the search carried out in pursuance of the warrant which

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appears to him or her or them to have been used in connection with or to be evidence of the commission of any such offence. (3) If a police officer or any person authorised by the warrant to exercise the power conferred by this subsection has reasonable grounds to suspect that an offence to which this section applies has been or is being committed, he or she may seize and detain, for the purposes of any relevant proceedings, any station, apparatus or other thing which appears to him or her to have been used in connection with or to be evidence of the commission of any such offence. (4) Nothing in this section affects any power to seize or detain property exercisable by a police officer apart from this section. (5) A person who intentionally obstructs any person in the exercise of the power conferred by subsection (3) commits an offence and is liable on conviction to a fine of $2,000 and to imprisonment for 1 year. (6) References in this section to relevant proceedings are references to - (a) proceedings for an offence to which this section applies; and (b) proceedings for forfeiture under section 100.

Forfeiture on conviction 100. (1) If a person is convicted of- (a) an offence under section 47 or section 60; (b) a contravention of provisions of this Act relating to any radio- communication station or any radio-communication apparatus; or (c) using any apparatus for the purpose of interfering with radio- communication, the court may, in addition to any other penalty, order all or any of the apparatus of

the telecommunication system, the radio-communication station or apparatus, or (as the case may be) the apparatus in connection with which the offence was committed, to be forfeited to the Authority.

(2) The power conferred by subsection (1) does not apply to radio-communication apparatus not designed or adapted for transmission (as opposed to reception). (3) Apparatus may be ordered to be forfeited under this section notwithstanding that it is not the property of the person by whom the offence giving rise to the forfeiture was committed, and any apparatus ordered to be forfeited under this section may be disposed of by the Authority in such manner as it thinks fit. (3) Subsections (1), (2) and (3) have effect notwithstanding anything in the Magistrates' Courts Act, the Criminal Procedure Code or the High Court Act.

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(4) The court by whom any apparatus is ordered to be forfeited under this section may

also order the person by whom the offence giving rise to the forfeiture was committed not to dispose of that apparatus except by delivering it up to the Authority within 48 hours of being required to do so by the Authority.

(5) If a person against whom an order is made under subsection (4) contravenes the order or fails to deliver up the apparatus to the Authority as required, he or she commits a further offence which, for the purpose of determining the appropriate penalty, is to be treated as an offence under the same provision as the offence for which the forfeiture was ordered.

Disposal of property seized 101. (1) Any property seized by a person authorised by a warrant under section 98 may be detained - (a) for 6 months beginning with the date of the seizure; or (b) if proceedings for an offence involving that property are instituted within that period, until the conclusion of those proceedings. (2) After the end of the period for which its detention is authorised by virtue of subsection (1) any property which - (a) remains in the possession of the Authority; and (b) has not been ordered to be forfeited under section 100, must be dealt with in accordance with the subsections (3), (4) and (5). (3) The Authority must take reasonable steps to deliver the property to any person appearing to the Authority to be its owner. (4) If the property remains in the possession of the Authority for more than 1 year after its detention is authorised by subsection (1), the Authority may dispose of the property as it thinks fit. (5) The delivery of the property in accordance with subsection (3) to any person appearing to the Authority to be its owner does not affect the right of any other person to take legal proceedings against the person to whom it is delivered or against anyone subsequently in possession of the property for the recovery of the property.

Admissibility of transcript in judicial proceedings 102. (1) The transcript of every message after transmission must before delivery to a person to whom it is addressed be stamped or initialled by the person who receives it for delivery, and any such transcript message, purporting to have been so stamped or initialled, is admissible in judicial proceeding as prima facie

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evidence that the matter contained in it is the same as that stated in the original message left for transmission.

(2) For the purpose of subsection (1) it is not necessary to prove the signature of the person purporting to have signed an original message or that it was left at any telecommunication office for transmission, nor to prove the stamp or initials of the person receiving the transcript for delivery.

Recovery of fees and charges

103. A fee, charge or other sum payable to the Authority under this Act may be sued for and recovered by the Authority in a court of competent jurisdiction as a debt due to the Authority.

General offence provision 104. (1) A person who contravenes a provision of this Act or of any regulation or order made under it or of any licence, permit, or approval issued under it commits an offence. (2) A person who commits an offence under this Act for which no penalty is specifically provided is liable on conviction to a fine of $1,000.

Procuring the commission of an offence 105. A person who solicits or endeavours to procure any other person to commit an offence under this Act commits an offence and is liable on conviction to the penalty provided for in respect of the first offence.

Offences by bodies corporate 106. (1) If a body corporate commits an offence under this Act and the offence is proved

to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he or she, as well as the body corporate, commits the offence and is liable to be proceeded against and punished accordingly.

(2) If the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director of the body corporate.

Proceedings - conduct and jurisdiction 107. (1) An officer or employee of the Authority authorised in writing by the Director- General may- (a) prosecute in the Magistrates' Court any offence under this Act or any subsidiary legislation made under it; (b) appear in civil proceedings in the Magistrates' Court on behalf of the Authority.

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(2) Proceedings for an offence under this Act may be heard and determined by a Resident Magistrate and a Resident Magistrate may impose the maximum sentence under this Act notwithstanding any limitation on a magistrate’s jurisdiction under any other Act.

Disposal of fines 108. (1) Fines imposed under this Act must be paid into the Consolidated Fund. (2) If a person is convicted of an offence under this Act and the court considers that the commission of the offence caused another person to suffer pecuniary loss, the court may uses due enquiry and having given all relevant parties an opportunity to be heard, order the convicted person to pay the other person a specified amount of compensation for the loss. (3) The court may make an order under subsection (2) whether or not it imposes a penalty for the offence. (4) An amount ordered to be paid to a person under this section may be recovered in a court of competent jurisdiction as a debt due by the convicted person to that person. (5) Subject to any other provision of this Act, anything in connection with which any offence against this Act is committed may, on conviction of a person of the offence, be forfeited to the State by order of the court.

Transitional and savings provisions 109. The transitional and savings provisions set out in Schedule 3 have effect at the commencement of this Act.

Consequential amendments 110. The enactments listed in Schedule 4 are amended in the manner specified in that Schedule.

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SCHEDULE 1

(Section 8)

DECLARATION OF BOARD MEMBER I, A.B., do solemnly and sincerely declare that I will in my position as member of the Board of the Telecommunication Authority of the Fiji Islands under the Telecommunications Act 1999 be honest, trustworthy and fair to all persons according to the law and to the best of my knowledge, that I will not contrary to the law communicate or divulge any information received in confidence by me as such member and that I will give account of any responsibility entrusted to me whenever and wherever required of me. Declared at on the day of 19/20 Before me

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Magistrate/Justice of Peace

SCHEDULE 2

(Section 64) THE TELECOMMUNICATIONS CODE

Interpretation

1. (1) In this code, unless the context otherwise requires - "agriculture" has the same meaning as in the Town Planning Act (Cap. 139) and "agricultural" is to be construed accordingly; "agricultural land" means land used predominantly for the purposes of agriculture; "alteration" is to be construed in accordance with sub-paragraph (2); "court" means a court of competent jurisdiction but for the purposes of paragraphs 5, 6, 7 and 17 of this code means the High Court of the Fiji Islands; "emergency works", in relation to the operator or a relevant undertaker for the purposes of paragraph 19, means works the execution of which at the time it is proposed to execute them is requisite in order to put an end to, or prevent, the arising of circumstances then existing or imminent which are likely to cause -

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(a) danger to persons or property; (b) the interruption of any service provided by the operator's system or, as the case may be, interference with the exercise of any functions conferred or imposed on the undertaker by or under any written law; or (c) substantial loss to the operator or, as the case may be, the undertaker, and such other works as in all the circumstances it is reasonable to execute with those works; "footpath" means a way over which the public have a right of way whether on horseback or on foot; "land" includes native land; "line" is to be construed in accordance with the definition in this paragraph of telecommunication apparatus; " operator's system" means a telecommunication system the running of which is authorised by a licence under section 64(1); "owner" in relation to any native land means the native owners of such land as defined in the Native Lands Act (Cap. 133) but, in relation to any agreement, consent or permission required to be given under this code, means the Native Land Trust Board acting for and behalf of the native owners of such land; "public road" has the same meaning as in the Roads Act (Cap. 175); "statutory purposes" means the purposes of establishing and operating the operator's system; "street" has the same meaning as in the Town Planning Act (Cap.139); "structure" does not include a building; "telecommunication apparatus" includes any apparatus falling within the definition in section 2 of this Act and any apparatus not so falling which is designed or adapted for use in connection with the operation of a telecommunication system and, in particular -

(a) any line, that is to say, any wire, cable, tube, pipe or other similar thing (including its casing or coating) which is so designed or adapted; and

(b) any structure, pole or other thing in, on, by or from which any telecommunication apparatus is or may be installed, supported, carried or suspended,

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and references to the installation of telecommunication apparatus are to be construed accordingly.

(2) In this code, references to the alteration of any apparatus include references to the moving, removal or replacement of the apparatus.

(3) In relation to any land which, otherwise than in connection with a street on that land, is divided horizontally into different parcels, references in this code to a place over or under the land have effect in relation to each parcel as not including references to any place in a different parcel. (4) For the purposes of this code a street includes, where the street passes over a bridge or through a tunnel, the bridge or tunnel.

Agreement required to confer right to execute works 2. (1) The agreement in writing of the occupier for the time being on any land is required for conferring on the operator a right -

(a) to execute any works on the land for or in connection with the installation, maintenance, adjustment, repair or alteration of telecommunication apparatus;

(b) to keep telecommunication apparatus installed on, under or over the land; or (c) to enter the land to inspect any apparatus kept installed (whether on or under the land or elsewhere) for the purposes of the operator's system. (2) A person who is the owner of the freehold estate in any land or is a lessee of any land or the owner of any native land is not bound by a right conferred in accordance with sub-paragraph (1) by the occupier or owner of that land unless the person - (a) conferred the right as occupier of the land; (b) has agreed in writing to be bound by the right; (c) is for the time being treated by virtue of sub-paragraph (3) as having so agreed; or (d) is bound by the right by virtue of sub-paragraph (4). (3) If a right falling within sub-paragraph (1) has been conferred by the occupier of any land for purposes connected with the provision, to the occupier from time to time of that land, of any telecommunication services and - (a) the person conferring the right is also the owner of the freehold estate in that land or is a lessee of the land under a lease for a term of a year or more or in the case of any native land, is the owner of such land; or

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(b) a person owning the freehold estate in the land or a lessee of the land under a lease for a term of a year or more or, in the case of any native land, is the owner of such land, has agreed in writing that his interest in the land should be bound by the right, then, subject to paragraph 4, that right (as well as binding the person who conferred it) has effect, at any time when the person who conferred it or a person bound by it under sub-paragraph (2) (b) or (4) of this paragraph is the occupier of the land, as if every person for the time being owning an interest in the land had agreed in writing to the right being conferred for that purpose and, it is exercised solely for that purposes, to be bound by it. (4) If a person owning an interest in land agrees in writing (whether when agreeing to the right as occupier or for the purposes of sub-paragraph (3) (b) or otherwise) that his or her interest should be bound by a right falling within sub-paragraph (1), unless the contrary intention appears the right binds the owner from time to time of that interest and also - (a) the owner from time to time of any other interest in the land, being an interest created after the right is conferred and not having priority over the interest of which the agreement relates; and (b) any other person who is at any time in occupation of the land and whose right to occupation of the land derives, by contract or otherwise, from a person who at the time the right to occupation was granted was bound by virtue of this sub-paragraph. (5) A right falling within sub-paragraph (1) is not exercisable except in accordance with the terms, whether as to payment or otherwise, subject to which it is conferred, and accordingly every person for the time being bound by such a right has the benefit of those terms. (6) A variation of a right falling within sub-paragraph (1) or of the terms on which such a right is exercisable is capable of binding persons who are not parties to the variation in the same way as, under sub-paragraphs (2), (3) and (4), such a right is capable of binding persons who are not parties to the conferring of the right. (7) A right falling within sub-paragraph (1) is not subject to any written law requiring the registration of interests in, charges on or other obligations affecting land. (8) In this paragraph and paragraphs 3 and 4 - (a) references to the occupier of any land have effect - (i) in relation to any footpath that crosses and forms part of any agricultural land or any land which is being brought into use for agriculture, as references to the occupier of that land;

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(ii) in relation to any street (not being such a footpath) which is a public road, as references to the State or, if it is vested in or controlled by a municipal council, that municipal council;

(iii) in relation to any land (not being a public road) which is unoccupied, as references to the person (if any) who for the time being exercises powers of management or control over the land or, if there is no such person to every person whose interest in the land would be prejudicially affected by the exercise of the right in question; and

(b) "lease" includes any leasehold tenancy (whether in the nature of a head lease, sub-lease or underlease) and any agreement to grant such a tenancy but not a mortgage by demise or sub-demise. (9) Subject to paragraphs 9 and 11(2), this paragraph does not require any person to agree to the exercise of any right conferred by paragraph 9, 10, 11, 12 or 16.

Agreement required for obstructing access 3. (1) A right conferred in accordance with paragraph 2 or by paragraph 9, 10, or 11 to execute any works on any land, to keep telecommunication apparatus installed on, under or over any land or to enter any land is not exercisable so as to interfere with or obstruct any means of entering or leaving any other land unless the occupier for the time being of the other land conferred, or is otherwise bound by, a right to interfere with or obstruct that means of entering or leaving the other land. (2) The agreement in writing of the occupier for the time being of the other land is required for conferring any right for the purposes of sub-paragraph (1) on the operator. (3) The references in sub-paragraph (1) to a means of entering or leaving any land include references to any means of entering or leaving the land provided for use in emergencies. (4) Sub-paragraphs (2), (4), (5), (6) and (7) of paragraph 2 apply (subject to the following provisions) in relation to a right falling within sub-paragraph (1) of this paragraph as they apply in relation to a right falling within paragraph 2(1). (5) Nothing in this paragraph requires the person who is the occupier of, or owns any interest in, any land which is a street or to which paragraph 11 applies to agree to the exercise of any right on any other land.

Effect of rights and compensation

4. (1) Anything done by an operator in exercise of a right conferred in relation to any land in accordance with paragraph 2 or 3 is deemed to be done in exercise of a statutory power except as against -

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(a) a person who, being the owner of the freehold estate in that land or a lessee of the land or in the case of native land, the owner of such land, is not for the time being bound by the right; or (b) a person who has the benefit of any covenant or agreement as respects the land under any written law and which, by virtue of that written law, binds or will bind persons deriving title or otherwise claiming under the covenantor or, as the case may be, a person who was a party to the agreement.

(2) If a right has been conferred in relation to any land in accordance with paragraph 2 or 3 and anything has been done in exercise of that right, a person who, being the occupier of the land, the owner of the freehold estate in the land or a lessee of the land, or, in the case of native land, the owner of the land, is not for the time being bound by the right has the right to require the operator to restore the land to its condition before that thing was done.

(3) A duty imposed by virtue of sub-paragraph (2), to the extent that its performance involves the removal of any telecommunication apparatus from any land, is enforceable only in accordance with paragraph 17. (4) If - (a) when a right in relation to any land is conferred or varied in accordance with paragraph 2, there is a depreciation in the value of any relevant interest in the land; and (b) the depreciation is attributable to the fact that paragraph 17 will apply to the removal from the land, when the owner for the time being of that interest becomes the occupier of the land, of any telecommunication apparatus installed in pursuance of that right,

the operator must pay compensation to the person who, at the time the right is conferred or, as the case may be, varied, is the owner of that relevant interest; and the amount of that compensation must (subject to sub-paragraph (9 equal the amount of the depreciation.

(5) In sub-paragraph (4) "relevant interest", in relation to land subject to a right conferred or varied in accordance with paragraph 2, means any interest in respect of which the following conditions are satisfied at the time the right is conferred or varied, namely - (a) the owner of the interest is not the occupier of the land but may become the occupier of the land by virtue of that interest; and (b) the owner of the interest becomes bound by the right or variation by virtue only of paragraph 2(3).

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(6) Any question as to a person's entitlement to compensation under sub-paragraph (4) or as to the amount of any compensation under that sub-paragraph, must, in default of agreement, be referred to and determined by the court in accordance with any law for the time being in force. (7) A claim to compensation under sub-paragraph (4) must be made by giving the operator notice of the claim and specifying in that notice particulars of - (a) the land in respect of which the claim is made; (b) the claimant's interest in the land and, so far as known to the claimant, any other interest in the land; (c) the right or variation in respect of which the claim is made; and (d) the amount of the compensation claimed, and such a claim can be made at any time before the claimant becomes the occupier of the land in question, or at any time within 3 years after that time.

(8) For the purposes of assessing compensation under sub-paragraph (4), any provision in or under any written law for the time being in force for the purposes of assessing compensation for the compulsory acquisition of any interest in land may, subject to any necessary modifications, have effect if the court sees fit.

(9) Without affecting the powers of the court in respect of the costs of any proceedings before the court by virtue of this paragraph, if compensation is payable under subparagraph (4) there are also payable, by the operator to the claimant, any reasonable valuation or legal expenses incurred by the claimant for the purposes of the preparation and prosecution of the claim for that compensation.

Power to dispense with the need for agreement 5. (1) If an operator requires a person to agree for the purposes of paragraph 2 or 3 that any right should be conferred on the operator, or that any right should bind that person or any interest in land, the operator may give a notice to that person of the right and of the agreement that is required. (2) If the period of 28 days beginning with the giving of a notice under sub-paragraph (1) has expired without the giving of the required agreement, the operator may apply to the court for an order conferring the proposed right, or providing for it to bind any person or any interest in land, and (in either case) dispensing with the need for the agreement of the person to whom the notice was given. (3) The court may make an order under this paragraph if, but only if, it is satisfied that any prejudice caused by the order -

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(a) is capable of being adequately compensated for by money; or (b) is outweighed by the benefit accruing from the order to the persons whose access to a telecommunication system will be secured by the order, and in determining the extent of the prejudice, and the weight of the benefit, the court must have regard to all the circumstances and to the principle that no person should unreasonably be denied access to a telecommunication system. (4) An order made under this paragraph made in respect of a proposed right may, in conferring that right or providing for it to bind any person or any interest in land and in dispensing with the need for any person's agreement, direct that the right is to have effect with the modifications, be exercisable on the terms, and be subject to the conditions in the order. (5) The terms and conditions specified by virtue of subparagraph (4) in an order made under this paragraph must include any terms and conditions the court considers appropriate for ensuring that the least possible loss and damage is caused by the exercise of the right in respect of which the order is made to persons who occupy, own interests in or are from time to time on the land in question.

(6) If an order under this paragraph for the purpose of conferring any right or making provision for a right to bind any person or any interest in land dispenses with the need for the agreement of any person, the order has the same effect and incidents as the agreement of the person the need for whose agreement is dispensed with and accordingly is capable of variation or release by a subsequent agreement.

Acquisition of rights in respect of apparatus already installed

6. (1) This paragraph applies if the operator gives notice under paragraph 5(1) to any person and - (a) the notice requires the person's agreement in respect of a right which is to be exercisable (in whole or in part) in relation to telecommunication apparatus already installed on, under or over the land in question; and (b) the person is entitled to require the removal of the apparatus but, by virtue of paragraph 17, is not entitled to enforce its removal. (2) The court may, on the application of the operator, confer on the operator such temporary rights as appear to the court reasonably necessary for securing that, pending the determination of any proceedings under paragraph 5 or paragraph 17, the service provided by the operator's system is maintained and the apparatus properly adjusted and kept in repair. (3) If it is shown that a person with an interest in the land was entitled to require the removal of the apparatus immediately after it was installed, the court must, in determining for the purposes of paragraph 5 whether the apparatus should

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continue to be kept installed on, under or over the land, disregard the fact that the apparatus has already been installed there.

Court to fix financial terms if agreement dispensed with 7. (1) The terms and conditions specified by virtue of sub-paragraph (4) of paragraph 5 in an order under that paragraph dispensing with the need for a person's agreement include - (a) terms with respect to the payment of consideration in respect of the giving of the agreement, or the exercise of the rights to which the order relates, which the court considers would have been fair and reasonable if the agreement had been given willingly and subject to the other provisions of the order; and (b) terms which the court considers appropriate for ensuring that the person or persons from time to time bound by virtue of paragraph 2(4) by the rights to which the order relates are adequately compensated (whether by the payment of such consideration or otherwise) for any loss or damage sustained as a result of the exercise of those rights. (2) In determining what terms should be specified in an order under paragraph 5 for requiring an amount to be paid to any person in respect of - (a) the provisions of that order conferring any right or providing for any right to bind any person or any interest in land; or (b) the exercise of any right to which the order relates, the court must take into account the prejudicial effect (if any) of the order or, as the case may be, of the exercise of the right on that person's enjoyment of, or on any interest of the person in, land other than the land in relation to which the right is conferred. (3) In deciding what terms should be specified in an order under paragraph 5 for requiring an amount to be paid to any person, the court must, in a case where the order is made in consequence of an application made in connection with proceedings under paragraph 17, take into account, to the extent as it thinks fit, any period during which that person - (a) was entitled to require the removal of any telecommunication apparatus from the land in question; but (b) by virtue of paragraph 17, was not entitled to enforce its removal, and where the court takes any such period into account, it may also take into account any compensation paid under paragraph 4(4).

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(4) The terms specified by virtue of sub-paragraph (1) in an order under paragraph 5 above may provide - (a) for the making of payments from time to time to persons determined under those terms; and (b) for questions arising in consequence of those terms (whether as to the amount of any loss or damage caused by the exercise of a right or otherwise) to be referred to arbitration or to be determined in some other manner specified in the order. (5) The court may, if it thinks fit - (a) If the sum required to be paid by virtue of terms specified in an order under paragraph 5 has been determined, require the whole or any part of the sum to be paid into court; (b) pending the determination of the amount of the sum, order the payment into court of an amount on account as the court thinks fit. (6) If terms specified in an order under paragraph 5 require the payment of any sum to a person who cannot be found or ascertained, the sum must be paid into court.

Notices and applications by potential subscribers 8. (1) If - a) it is reasonably necessary for the agreement of any person to the

conferring of any right, or to a right binding any person or any interest in land, to be obtained by the operator before another person ("the potential subscriber") may be afforded access to the operator's system; and

(b) the operator has not given a notice or (has given a notice) but has not made an application in respect of that right under paragraph 5, the potential subscriber may at any time give a notice to the operator requiring the operator to give a notice or make an application under paragraph 5 in respect of that right.

(2) At any time after notice has been given to the operator under sub- paragraph (1), the operator may apply to the court to have the notice set aside on the ground that the conditions mentioned in that sub-paragraph are not satisfied or on the ground that, even if the agreement were obtained, the operator would not afford the potential subscriber access to the operator's system and could not be required to afford the operator access to that system.

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(3) Subject to any order of the court made in or pending in any proceedings under sub-paragraph (2), if at any time after the expiration of the period of 28 days beginning with the giving to the operator of a notice under sub-paragraph (1) the operator has not complied with the notice, the potential subscriber may, on the operator's behalf, give the required notice and (if necessary) make an application under paragraph 5 or, as the case may be, make the required application.

(4) The court may, on an application under sub-paragraph (3), give such directions as it thinks fit - (a) with respect to the separate participation of the operator in the proceedings to which the application gives rise, and (b) requiring the operator to provide information to the court. (5) A covenant, condition or agreement which would have the effect of preventing or restricting the taking by any person as a potential subscriber of any step under this paragraph is void to the extent that it would have that effect. (6) Nothing in this paragraph requires the operator to reimburse the potential subscriber for any costs incurred by the potential subscriber in or in connection with the taking of any step under this paragraph on the operator's behalf.

Road works 9. (1) For the statutory purposes, the operator has the right - (a) to install telecommunication apparatus, or keep telecommunication apparatus installed, under, over, along or across a street; (b) to inspect, maintain, adjust or alter any telecommunication apparatus so installed; and (c) to execute any works requisite for or incidental to the purposes of any works falling within paragraph (a) or (b). (2) Works which involve - (i) breaking up or opening a street; (ii) tunnelling or boring under a street; and (iii) breaking up or opening a sewer, drain or tunnel, may only be executed with the agreement required by paragraph 2 or an order of the court under paragraph 5 dispensing with the need for that agreement.

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Power to fly lines

10. (1) Subject to paragraph 3 and the following provisions of this code, if any telecommunication apparatus is kept installed on or over any land for the purposes of the operator's system, the operator, for the statutory purposes, has the right to install and keep installed lines which - (a) pass over the land adjacent to or in the vicinity of the land on or over which that apparatus is so kept; (b) are connected to that apparatus; and (c) are not at any point in the course of passing over the other land less than 3 metres above the ground or within 2 metres of any building over which they pass. (2) Nothing in sub-paragraph (1) authorises the installation or keeping on or over any land of - (a) any telecommunication apparatus used to support, carry or suspend a line installed in pursuance of that sub-paragraph; or (b) any line which by reason of its position interferes with the carrying on any business carried on that land. (3) In the exercise of a right under this paragraph, the operator does not acquire possession of any right over any other land.

Tidal waters 11. (1) Subject to paragraph 3 and the following provisions, the operator has the right for the statutory purposes - (a) to execute any works (including placing any buoy or seamark) on any tidal water or lands for or in connection with the installation, maintenance, adjustment, repair or alteration of telecommunication apparatus; (b) to keep telecommunication apparatus installed on, under or over tidal water or lands; and (c) to enter any tidal water or lands to inspect any telecommunication apparatus so installed. (2) A right conferred by this paragraph must not be exercised in relation to any land in which - (a) a State interest (within the meaning of paragraph 21) subsists unless agreement to the exercise of the right in relation to that land has been given, in accordance with subparagraph (3) of that paragraph, in respect of that interest;

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(b) a Maritime and Ports Authority of the Fiji Islands interest or customary fishing right subsists without either the agreement to the exercise of the right in relation to that land required by paragraph 2 or an order of the court under paragraph 5 dispensing with that agreement, in respect of that interest. (3) Before executing any works in exercise of a right conferred by this paragraph the operator must submit a plan of the proposed works to the Minister for the Minister's approval. (4) Sub-paragraph (3) does not apply to the execution of any emergency works, but as soon as practicable after commencing any emergency works on any tidal water or lands the operator must submit a plan of those works to the Minister for the Minister's approval. (5) As soon as reasonably practicable after a plan is submitted under sub- paragraph (3) or (4) the Minister must, after consulting appropriate authorities exercising functions in relation to the tidal water or lands in question, decide whether to approve it; and, if the Minister does approve it he or she may do so subject to modifications and conditions and on terms the Minister thinks fit. (6) The Minister must not approve a plan submitted under sub-paragraph (3) or (4) unless satisfied that adequate arrangements have been made for compensating any persons appearing to the Minister to be an owner of an interest in the tidal water or lands in question for any loss or damage sustained by the person in consequence of the execution of the works to which the plan relates. (7) If - (a) the operator executes any works in exercise of a right conferred by this paragraph; but (b) those works are executed otherwise than in accordance with a plan approved by the Minister (including, in the case of emergency works, where works already commenced are not approved) or a condition on which any approval of the Minister is given is or has been contravened, the Minister may by notice require the operator to execute such remedial works (including, where appropriate, replenishment of marine, plant or animal life) as the Minister thinks appropriate having regard to the terms and conditions of any approval that he or she has given and, if those works are not executed in accordance with the notice, may execute them at the operator's expense.

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(8) If, as the result - (a) of the failure of the operator reasonably to maintain any telecommunication apparatus kept installed for the purposes of the operator's system on, under or over any tidal water or lands; or (b) of the abandonment by the operator of any such apparatus, it appears to the Minister that any remedial works should be executed, the Minister present by notice require the operator to execute those works and, if those works are not executed in accordance with the notice, may execute them at the operator's expense. (9) The Minister may for the purposes of exercising functions under this paragraph, and of determining whether to exercise those functions, cause a survey or examination to be carried out, at the operator's expense, of any works or apparatus or of the site or proposed site of any works or apparatus. (10) Where the Minister is authorised by this paragraph to do anything at the operator's expense, the expenses incurred by the Minister in or in connection with the doing of that thing be recoverable by the Minister from the operator in any court of competent jurisdiction. (11) In this paragraph- "remedial works" includes any works of repair or restoration, the alteration of any apparatus and any works to restore the site of any apparatus to its original condition; "tidal water or lands" includes any estuary or branch of the sea, the shore below mean high water springs and the bed of any tidal water.

Compensation for injuring neighbouring land 12. (1) If a right conferred by or in accordance with the provisions of this code is exercised, compensation is payable by the operator under this paragraph in accordance with paragraph 7 for injuring neighbouring land as if that paragraph had effect in relation to the injury caused by the exercise of such a right as it has effect in relation to the execution of works on land that has been compulsorily acquired. (2) Sub-paragraph (1) does not confer any entitlement to compensation on any person in respect of the exercise of a right conferred in accordance with paragraph 2 or 3, if that person conferred the right or is bound by it by virtue of paragraph 2(2)(b) or (d), but the entitlement of any person to compensation under this paragraph must be determined irrespective of

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his or her ownership of any interest in the land where the right is exercised. (3) Compensation is not payable on any claim for compensation under this paragraph unless the amount of the compensation exceeds $100.00.

Objections to overhead apparatus 13. (1) This paragraph applies where the operator has completed the installation for the purposes of the operator's system of any telecommunication apparatus the whole or part of which is at a height of 3 metres or more above the ground. (2) At any time before the expiration of the period of 3 months beginning with the completion of the installation of the apparatus a person who is the occupier of or owns an interest in - (a) any land over or on which the apparatus has been installed; or (b) any land the enjoyment of which, or any interest in which, is, because of the nearness of the land to the land on or over which the apparatus has been installed, capable of being prejudiced by the apparatus, may give the operator notice of objection in respect of that apparatus. (3) Notice of objection must not be given in respect of any apparatus if the apparatus - (a) replaces any telecommunication apparatus which is not substantially different from the new apparatus; and (b) is not in a significantly different position. (4) If a person has both given a notice under this paragraph and applied for compensation under any of the preceding provisions, the court may - (a) give such directions as it thinks fit for ensuring that no compensation is paid until any proceedings under this paragraph have been disposed of; and (b) if the court makes an order under this paragraph, provide in the order for some or all of the compensation otherwise payable under this code to that person not to be so payable, or, if the case requires, for some or all of any compensation paid under this code to that person to be repaid to the operator. (5) At any time later than 2 months after the giving of a notice of objection but less than 4 months after the giving of that notice, the person who gave the notice may apply to the court to have the objection upheld.

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(6) Subject to sub-paragraph (7), the court must uphold an objection if the apparatus appears materially to prejudice the applicant's enjoyment of, or interest in, the land in right of which the objection is made and the court is not satisfied that the only possible alterations of the apparatus will - (a) substantially increase the cost or diminish the quality of the service provided by the operator's system to persons who have, or may in future have, access to it; (b) involve the operator in substantial additional expenditure (disregarding any expenditure occasioned solely by the fact that any proposed alteration was not adopted originally or, as the case may be, that the apparatus has been unnecessarily installed); or (c) give to any person a case at least as good as the applicant has to have an objection under this paragraph upheld.

(7) The court must not uphold an objection if the applicant is bound by a right of the operator falling within paragraph 2 or 3(1) to install the apparatus and it appears to the court unreasonable, having regard to the fact that the applicant is so bound and the circumstances in which he or she became so bound, for the applicant to have given notice of objection.

(8) In considering the matters specified in sub-paragraph (6) the court must have regard to all the circumstances and to the principle that no person should unreasonably be denied access to telecommunication system. (9) If it upholds an objection under this paragraph the court may by order - (a) direct the alteration of the apparatus to which the objection relates; (b) authorise the installation (instead of the apparatus to which the objection relates), in a manner and position specified in the order, of any apparatus so specified; (c) direct that no objection may be made under this paragraph in respect of any apparatus the installation of which is authorised by the court. (10) The court must not make an order under this paragraph directing the alteration of any apparatus or authorising the installation of any apparatus unless it is satisfied either - (a) that the operator has all the rights the operator needs in order to make the alteration or, as the case may be install the apparatus; or (b) that -

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(i) the operator would have those rights if the court, on an application under paragraph 5, dispensed with the need for the agreement of any person; and (ii) it would be appropriate for the court, on such an application, to dispense with the need for that agreement. (11) For the purpose of dispensing with the need for the agreement of any person to the alteration or installation of any apparatus under sub-paragraph (10), the court has the same powers as it would have if an application had been duly made under paragraph 5 for an order dispensing with the need for that person's agreement. (12) For the purposes of sub-paragraphs (6)(c) and (10), the court may on an application under this paragraph give the applicant directions for bringing the application to the notice of any interested persons the court thinks fit.

Obligation to place notices on overhead apparatus 14. (1) If the operator has for the purposes of the operator's system installed any telecommunication apparatus the whole or part of which is at a height of 3 metres or more above the ground, the operator must, before the expiration of the period of 3 days beginning with the completion of the installation, in a secure and durable manner place a notice - (a) on every major item of apparatus installed; or (b) if no major item of apparatus is installed, on the nearest major item of telecommunication apparatus to which the apparatus that is installed is directly or indirectly connected.

(2) A notice placed under sub-paragraph (1) must be placed in a position where it is reasonably legible and must give the name of the operator and an address in the Fiji Islands at which any notice of objection may be given under paragraph 13 in respect of the apparatus in question, and any person giving such a notice at that address in respect of that apparatus is deemed to have been furnished with that address for the purposes of paragraph 20(4)a).

(3) An operator who contravenes the requirements of this paragraph commits an offence and is liable on conviction to a fine of $5,000. (4) In proceedings for an offence under this paragraph it is a defence for the person charged to prove that he or she took all reasonable steps and exercised all due diligence to avoid committing the offence.

Tree lopping 15. (1) If a tree overhangs a street and, in doing so, either -

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(a) obstructs or interferes with the working of any telecommunication apparatus used for the purposes of the operator's system; or (b) will obstruct or interfere with the working of any telecommunication apparatus which is about to be installed for those purposes, the operator may by notice to the occupier of the land on which the tree is growing require the tree to be lopped so as to prevent the obstruction or interference. (2) If within the period of 7 days beginning with the giving of the notice by the operator, the occupier of the land on which the tree is growing gives the operator a counter-notice objecting to the lopping of the tree, the notice has effect only if confirmed by the Minister in order. (3) If at any time a notice under sub-paragraph (1) has not been complied with and - (a) a period of 14 days beginning with the giving of the notice has expired without a counter notice having been given; or (b) an order of the Minister confirming the notice has come into force, the operator may cause the tree to be lopped as mentioned in sub- paragraph (1). (4) If the operator lops a tree under sub-paragraph (3) it must do so in a careful manner and in such a way as to cause minimum damage to the tree. (5) If - (a) a notice under sub-paragraph (1) is complied with either without a counter-notice having been given or after the notice has been confirmed; or (b) the operator exercises the power conferred by sub-paragraph (3), the court must, on an application made by a person who has sustained loss or damage in consequence of the lopping of the tree or who has incurred expense in complying with the notice, order the operator to pay the person compensation in respect of the loss, damage or expense the court thinks fit.

Power to require alteration of apparatus 16. (1) If telecommunication apparatus is kept installed on, under or over any land for the purposes of the operator's system, any person with an interest in that land or adjacent land may (notwithstanding the terms of

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any agreement binding that person) by notice given to the operator require the alteration of the apparatus on the ground that the alteration is necessary to enable that person to carry out a proposed improvement of the land in which he or she has an interest. (2) If a notice is given under sub-paragraph (1) by any person to the operator, the operator must comply with it unless the operator gives a counter- notice under this sub-paragraph within 28 days after the giving of the notice. (3) If a counter-notice is given under sub-paragraph (2) to any person, the operator must not make the required alteration unless the court on an application by that person orders the alteration to be made. (4) The court must not order alteration to be made unless, having regard to all the circumstances and the principle that no person should unreasonably be denied access to a telecommunication system, the court is satisfied - (a) that the alteration is necessary as mentioned in sub-paragraph (1); and (b) that the alteration will not substantially interfere with any service provided by the operator's system. (5) The court must not order alteration of any apparatus unless the court is satisfied - (a) that the operator has all the rights the operator need to make the alteration; or (b) that - (i) the operator would have those rights if the court, on an application under paragraph 5, dispensed with the need for the agreement of any person; and (ii) it would be appropriate for the court, on such an application, to dispense with the need for that agreement. (6) For the purposes of dispensing with the need for the agreement of any person to the alteration of any apparatus under sub-paragraph (5) the court has the same powers as it would have if an application had been duly made under paragraph 5 for an order dispensing with the need for that person's agreement. (7) For the purposes of sub-paragraph (5), the court may on an application under this paragraph give the applicant directions for bringing the application to the notice of such other interested persons as the court thinks fit.

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(8) An order under this paragraph may provide for an alteration to be carried out with modifications, on terms and subject to conditions the court thinks fit, but the court must not include any such modifications, terms or conditions in its order without the consent of the applicant, and if such consent is not given may refuse to make an order under this paragraph. (9) An order made under this paragraph on the application of any person must, unless the court otherwise thinks fit, require that person to reimburse the operator in respect of any expenses which the operator incurs in or in connection with the execution of any works in compliance with the order. (10) In sub-paragraph (1) "improvement" includes development and change of use.

Restriction on right to require the removal of apparatus 17. (1) If a person is entitled to require the removal of an operator's telecommunication apparatus from any land (whether under any written law, or because the apparatus is kept on, under or over that land otherwise than in pursuance of a right binding that person or for any other reason) the person is not entitled to enforce the removal of the apparatus except, subject to sub-paragraph (12), in accordance with this paragraph. (2) A person entitled to require the removal of an operator's telecommunication apparatus must give notice to the operator requiring the removal of the apparatus. (3) If a person gives a notice under sub-paragraph (2) and the operator does not give the person a counter-notice within the period of 28 days beginning with the giving of the notice, the person is entitled to enforce the removal of the apparatus. (4) A counter-notice given under sub-paragraph (3) to any person must do one or both of the following - (a) state that the person is not entitled to require the removal of the apparatus; (b) specify the steps which the operator proposes to take for the purpose of securing a right as against that person to keep the apparatus on the land. (5) The steps mentioned in sub-paragraph (4)(b) include any steps which the operator could take for the purpose of enabling it, if the apparatus is removed, to re-install the apparatus. (6) The fact that by reason of the following provisions of this paragraph any proposed re-installation is only hypothetical does not prevent the operator

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from taking steps or any court or person from exercising any function in consequence of those steps having been taken. (7) If a counter-notice is given under sub-paragraph (3) to any person, the person may only enforce the removal of the apparatus in pursuance of an order of the court and, if the counter-notice specifies steps which the operator proposes to take to secure a right to keep the apparatus on the land, the court must not make such an order unless satisfied- (a) that the operator is not intending to take those steps or is being unreasonably dilatory in the taking of those steps; or (b) that the taking of those steps has not secured, or will not secure, for the operator or against that person any right to keep the apparatus installed on, under or over the land or, as the case may be, to re-install it if it is removed. (8) If a person is entitled to enforce the removal of any apparatus under this paragraph (whether by virtue of sub-paragraph (3) or an order of the court under sub-paragraph (6)), the person may, without prejudice to any method available to the person apart from this sub-paragraph for enforcing the removal of that apparatus, apply to the court for authority to remove it, and, on such an application, the court may, if it thinks fit, give that authority. (9) If apparatus is removed by a person under an authority given by the court under sub-paragraph (7), any expenses incurred by the person in or in connection with the removal of the apparatus is be recoverable by the person from the operator in any court of competent jurisdiction, and in so giving an authority to any person the court may also authorise the person, in accordance with the directions of the court, to sell any apparatus removed under the authority and to retain the whole or a part of the proceeds of sale on account of those expenses. (10) Any telecommunication apparatus kept installed on, under or over any land is (except for the purposes of this paragraph and without prejudice to paragraphs 6(3) and 7(3)) deemed, as against any person who was at any time entitled to require the removal of the apparatus, but by virtue of this paragraph not entitled to enforce its removal, to have been lawfully so kept at that time. (11) This paragraph applies in relation to telecommunication apparatus the alteration of which some person ("the relevant person") is entitled to require in consequence of the stopping up, closure, change or diversion of any street or the extinguishment or alteration of any public right of way and- (a) the removal of the apparatus constitutes compliance with a requirement to make any other alteration;

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(b) a counter-notice under sub-paragraph (3) may state (in addition to, or instead of, any of the matters mentioned in sub-paragraph (4)) that the operator requires the relevant person to reimburse it in respect of any expenses which it incurs in or in connection with the making of any alteration in compliance with the requirements of the relevant person; (c) an order made under this paragraph on an application by the relevant person in respect of a counter-notice containing such a statement must, unless the court otherwise thinks fit, require the relevant person to reimburse the operator in respect of any expenses which it so incurs; and (d) sub-paragraph (8) does not apply. (12) References in this paragraph to the operator's telecommunication apparatus include references to telecommunication apparatus which (whether or not vested in the operator) is being, is to be or has been used for the purposes of the operator's system. (13) (a) A person is not, under this paragraph, entitled to enforce the removal of any apparatus on the ground only that the person is entitled to give a notice under paragraph 11, 13 or 16. (b) This paragraph is without prejudice to paragraph 19 and to the power to enforce an order of the court under paragraph 11, 13, or 16.

Abandonment of apparatus 18. Without prejudice to paragraphs 1 to 17 of this code, if the operator has a right conferred by or in accordance with this code for the statutory purposes to keep telecommunication apparatus installed on, under or over any land, it is not entitled to keep that apparatus so installed if, at a time when the apparatus is not, or is no longer, used for the purposes of the operator's system, there is no reasonable likelihood that it will be so used.

Undertaker's works 19. (1) This paragraph applies where a relevant undertaker is proposing to execute any undertaker's works which involve or are likely to involve a temporary or permanent alteration of any telecommunication apparatus kept installed on, under or over any land for the purposes of the operator's system. (2) The relevant undertaker must, not less than 14 days before the works are commenced, give the operator a notice specifying the nature of the

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undertaker's works, the alteration or likely alteration involved and the time and place at which the works will be commenced. (3) Sub-paragraph (2) does not apply in relation to any emergency works of which the relevant undertaker gives the operator notice as soon as practicable after commencing the works. (4) If a notice has been given under sub-paragraph (2) by a relevant undertaker to the operator, the operator may within the period of 14 days beginning with the giving of the notice give the relevant undertaker a counter-notice which may state either - (a) that the operator intends to make an alteration made necessary or expedient by the undertaker's proposed works; or (b) that it requires the undertaker in making any such alteration to do so under the supervision and to the satisfaction of the operator. (5) If a counter-notice given under sub-paragraph (4) states that the operator itself intends to make any alteration - (a) the operator (subject to sub-paragraph (7)) has the right, instead of the relevant undertaker, to execute any works for the purpose of making that alteration; and (b) any expenses incurred by the operator in or in connection with the execution of those works and the amount of any loss or damage sustained by the operator as a result of the alteration are recoverable by the operator from the undertaker in a court of competent jurisdiction. (6) If a counter-notice given under sub-paragraph (4) states that any alteration is to be made under the supervision and to the satisfaction of the operator - (a) the relevant undertaker must not make the alteration except as required by the notice or under sub-paragraph (7); and (b) any expenses incurred by the operator in or in connection with the provision of that supervision and the amount of any loss or damage sustained by the operator in consequence of the alteration are recoverable by the operator from the undertaker in a court of competent jurisdiction. (7) If - (a) no counter-notice is given under sub-paragraph (4); or (b) the operator, having given a counter-notice falling within that sub- paragraph, fails within a reasonable time to make any alteration made necessary or expedient by the proposed undertaker's

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works or, as the case may be, unreasonably fails to provide the required supervision, the relevant undertaker may execute works for the purpose of making the alteration or, as the case may be, may execute such works without the supervision of the operator, but in either case the undertaker must execute the works to the satisfaction of the operator. (8) If the relevant undertaker or any of its agents - (a) executes any works without the notice required by sub- paragraph (2) having been given; or (b) unreasonably fails to comply with any reasonable requirement of the operator under this paragraph, it commits an offence and liable on conviction to a fine - (i) if the service provided by the operator's system is interrupted by the works or failure - of $5,000 (ii) if that service is not so interrupted - of $2,000. (9) In this paragraph - "relevant undertaker" means - (a) any person (including a local authority) authorised by any Act or by any order or scheme made under or confirmed by any Act to carry on - (i) any railway, tramway, road transport, water transport, canal, inland navigation, dock, harbour, pier or lighthouse undertaking; (ii) any undertaking for the supply of gas or electricity; or (iii) any undertaking for the supply of water or the disposal of sewage; (b) any person (apart from the operator) to whom this code is applied by a licence under section 7 of the Act; and (c) any person to whom this paragraph is applied by any Act; "undertaker's works" means - (a) in relation to a relevant undertaker falling within paragraph (a) of the preceding definition, any works which that undertaker is authorised to execute for the purposes of, or in connection with, the carrying on by the undertaker of the undertaking mentioned in that paragraph;

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(b) in relation to a relevant undertaker falling within paragraph (b) of that definition, any works which that undertaker is authorised to execute by or in accordance with any provision of this code; and (c) in relation to a relevant undertaker falling within paragraph (c) of that definition, the works for the purposes of which this paragraph is applied to that undertaker. (10) The application of this paragraph by virtue of paragraph (c) of each of the definitions in sub-paragraph (9) to any person for the purposes of any works is without prejudice to its application by virtue of paragraph (a) of each of those definitions to that person for the purposes of any other works.

Notices 20. (1) A notice required to be given by the operator to any person for the purposes of this code must be in a form approved by the Minister as adequate for indicating to that person the effect of the notice and of so much of this code as is relevant to the notice and to the steps that may be taken by that person under this code in respect of that notice. (2) A notice required to be given to any person for the purposes of this code may be given to the person either by delivering it to the person or by leaving it at the person’s address or by post, but a notice must not be given by post unless it is sent by registered letter or by recorded delivery. (3) Any notice required to be given under this code may be given to an incorporated company or body by giving it to secretary or clerk of the company or body. (4) For the purposes of this paragraph and of the application of this code, the address of a person is - (a) if the person to whom the notice is to be given has furnished the person giving the notice with an address for service under this code - that address; (b) in a case not falling within paragraph (a), if the person to whom the notice is to be given is an incorporated company or body. The registered or principal office of the company or body; and (c) in any other case - the last known address of the person to whom the notice is to be given. (5) If, for the purpose of giving any notice under this code, it is not practicable after reasonable inquiries to ascertain the name and address -

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(a) of the person who is for the purposes of any of this code the occupier of any land; or (b) of the owner of any interest in any land, a notice may be given under this code by addressing it to a person by the description of "occupier" of the land (describing it) or, as the case may be, "owner" of the interest (describing both the interest and the land) and by delivering it to some person on the land or, if there is no person on the land to whom it can be delivered, by placing it, or a copy of it, on some conspicuous object on the land. (6) In any proceedings under this code a certificate purporting to be signed by the Minister and stating that a particular form or notice has been approved as mentioned in sub-paragraph (1) is conclusive evidence of the matter certified.

Application to the State 21. (1) This code applies in relation to land in which there subsists, or at any material time subsisted, a State interest as it applies in relation to land in which no such interest subsists. (2) In this paragraph "State interest" means an interest which belongs to the State. (3) Any agreement required by this code to be given in respect of any State interest subsisting in any land must be given by the appropriate authority and if any question arises as to what authority is the appropriate authority in relation to any land that question shall be referred to the Director of Lands, whose decision is final.

Savings for the exclusion of certain remedies 22. (1) Except as otherwise provided, this code does not authorise the contravention of any provision of any written law passed or moved before this Act commenced. (2) The provisions of this code, except paragraphs 8(5) and 17 and sub- paragraph (1) of this paragraph do not affect any rights or liabilities arising under any agreement to which the operator is a party. (3) Except as provided under this code, the operator is not liable to compensate any person for, nor is subject to any other liability in respect of, any loss or damage caused by the lawful exercise of any right conferred by or in accordance with this code.

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(4) The ownership of any property is not affected by the fact that it is installed on or under, or affixed to, any land by any person in exercise of a right conferred by or in accordance with this code.

Application of code to existing systems 23. (1) Subject to this paragraph, references in this code to telecommunication apparatus installed on, under or over any land include references to telecommunication apparatus so installed before this Act commenced. (2) Without prejudice to sub-paragraph (1), any line or other apparatus lawfully installed before this Act commenced which if this Act had commenced should have been installed under this Act is (subject to sub- paragraph (6)) to be treated for the purpose of this code as if it had been so installed. (3) Any consent or agreement given (or deemed to have been given) for the purposes of the Posts and Telecommunications Decree before this Act commenced - (a) has effect after this Act commence as an agreement given for the purposes of this code; and (b) has effect, to the extent necessary for ensuring that the same persons are bound under this code as were bound by the consent or agreement, as if it were an agreement to confer a right or, as the case may require, to bind any interest in land of the person who gave (or is deemed to have given) the consent. (4) If by virtue of sub-paragraph (3) any person is bound by any right, the right is not exercisable except on the same terms and subject to the same conditions as the right which, by virtue of the giving of the consent, was exercisable before this Act commenced; and where under any written law repealed by this Act those terms or conditions included a requirement for the payment of compensation or required the determination of any matter by any court or person, the amount of the compensation or, as the case may be, the matter shall be determined after the coming into force of this Act in like manner as if this Act had not been passed. (5) A person is not entitled to compensation under this code if the person is entitled to compensation in respect of the same matter by virtue of sub - paragraph (4). (6) Neither this code nor the repeal by this Act of any provision of the Posts Telecommunications Decree prejudices any rights or liabilities (including any rights or liabilities transferred by virtue of this Act) which arise at any time under any agreement which was entered into before this code

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commenced and relates to the installation, maintenance, adjustment, repair, alteration or inspection of any telecommunication apparatus or to keeping any such apparatus installed on, under or over any land. (7) A person who before this code commenced has - (a) given a notice or requisition ("the telecommunications notice") under or for the purposes of any provision of the Posts and Telecommunications Decree to any person; or (b) made an application under or for the purposes of any such provision (including, in particular, an application for any matter to be referred to any court or person), may give a notice to the person to whom the telecommunications notice was given or, as the case may be, to every person who is or may be a party to the proceedings resulting from the application, stating that a specified step required to be taken under or for the purposes of this code, being a step equivalent to the giving of the telecommunications notice or the making of the application, and any steps required to be so taken before the taking of that step, should be treated as having been so taken. (8) A notice may be given under sub-paragraph (7) with respect to an application notwithstanding that proceedings resulting from the application have been commenced. (9) If a notice has been given to any person under sub-paragraph (7), the person may apply to the court for an order setting aside the notice on the ground that it is unreasonable in all the circumstances to treat the giving of the notice or the making of the application in question as equivalent to the taking of the steps specified in the notice under that sub-paragraph, but unless the court sets aside the notice under that sub-paragraph, the steps specified in the notice must be treated as having been taken and any proceedings already commenced must be continued accordingly. (10) If before this code commences anything has, in connection with the exercise by the operator of any power conferred on it by the Posts and Telecommunications Decree, been done under or for the purposes of street works that thing, in so far as it could have been done in connection with the exercise of any power conferred by this code, has effect after this code commences, without any notice being given under sub-paragraph (7), as if it had been done in connection with the power conferred by this code. (11) References in this paragraph to the commencement of this code are as references to the time at which the code commences force in relation to the operator.

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SCHEDULE 3 (Section 109)

TRANSITIONAL AND SAVINGS PROVISIONS

General

1. (1) A licence, approval or authority granted, or having effect as if granted, by the Minister under the Post and Telecommunications Decree which is effective at the commencement of this Act has effect as if granted by the Authority under this Act. (2) If in any written law in force on the day this Act commences there is any reference to a provision of the Post and Telecommunications Decree, the reference is to be construed, unless the context otherwise requires, as a reference to the corresponding provision of this Act.

(3) Subsidiary legislation under the Post and Telecommunications Decree which could be made by the Authority under this Act and which is effective immediately prior to the commencement of this Act has effect as if made under this Act, and to be construed with such modifications as are necessary to give effect to it.

(4) If in any written law in force at the commencement of this Act there is a reference to the Telecommunications Unit, being a reference to any power, function or duty which by virtue of this Act is a power, function or duty vested in or conferred upon the Authority, the reference is, unless the context otherwise requires and to the extent required to give effect to this Act to be construed as a reference to the Authority.

Transfer of assets 2. (1) As from the date of incorporation of the Authority, all movable property

vested in the State immediately before that date and used or managed by the Government Telecommunications Unit, and all assets, interests, rights, privileges, liabilities and obligations of the State relating to the Telecommunications Unit are transferred to and vest in the Authority without any conveyance, assignment, or transfer.

(2) Every right or liability vested in the Authority under sub-paragraph (1) may be sued on, recovered or enforced by or against the Authority in its own name and it is not necessary for the Authority or the State to give notice to any person whose right or liability is affected by the vesting. (3) Any agreement relating to any property , right or liability transferred to and vested in the Authority under sub-paragraph (1) to which the State

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was a party immediately before the commencement of this Act, whether in writing or not, and whether or not of such a nature that rights and liabilities could be assigned by the State, has effect as if the Authority had been a party to the agreement. (4) If a question arises as to whether any particular property, asset, interest right, privilege, liability, or obligation has been transferred to or vested in the Authority under sub-paragraph (1), a certificate signed by the Minister is conclusive evidence that the property, asset, interest, right, privilege, liability or obligation was or was not so transferred or vested.

Transfer of employees 3. (1) As from the date of incorporation of the Authority, persons employed immediately before that date in the Government Telecommunications Unit whose services are required by the Authority for the performance of its functions under this Act are transferred to the service of the Authority on terms not less favourable than those enjoyed by them immediately prior to their transfer.

(2) Until such time as terms and conditions of service, including rules as to the conduct and discipline of its employees, are drawn up by the Authority, the terms and conditions of service of State employees of the Government Telecommunications Unit, including rules as to the conduct and discipline of State employees, continue to apply to every person transferred under sub-paragraph (1).

(3) Nothing in this Act affects the rights, duties, or obligations of an employee not transferred to the Authority.

(4) For the purpose of any enactment, law, award, determination, contract, or agreement relating to the employment of a transferred employee, the contract of employment of that employee is deemed to have been unbroken and the period of service with the State is for all purposes deemed to have been a period of service with the Authority.

(5) A person who is transferred to the service of the Authority is not entitled to claim any benefit on the ground that he or she has been retired from the service of the State on account of abolition or reorganisation of office in consequence of the establishment and incorporation of the Authority.

Existing contracts 4. All deeds, bonds, agreements, instruments and arrangements to which the State is a party, subsisting immediately before the commencement of this Act and relating to the Government Telecommunications Unit or to any transferred employee, continue in force after that date and are enforceable by or against the Authority as if the Authority had been named therein or had been a party instead of the State.

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Continuation of proceedings

5. Any action, arbitration, proceeding or cause of action that relates to a transferred asset, liability or employee and that immediately before the commencement of this Act is pending or existing by, against, or in favour of the State or to which the State is a party may be prosecuted and, without amendment of any writ, pleading or other document, continued and enforced by, against, or in favour of the Authority.

Transfer of funds

6. The funds standing to the account of the Government Telecommunications Unit in respect of licences issued prior to the date of commencement of this Act are on the date of commencement to be transferred from the Consolidated Fund to a bank account of the Authority.

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SCHEDULE 4 (Section 111)

CONSEQUENTIAL AMENDMENTS

1. Parts II, III, IV, V and VI, Schedule 1 and sections 156, 159 and 166 of the Posts and Telecommunications Decree 1989 are repealed. 2. Section 160(1) of the Posts and Telecommunications Decree is amended in paragraphs (a) and (b) by the deletion of the words "or telecommunication". 3. Section 161 (3) (a) of the Posts and Telecommunications Decree is amended by the deletion of the words "may be published under section 24 above or". 4. Section 3 of the Commerce Act 1998 (Act No. 50 of 1998) is amended in subsection (1), in the definition of “regulated industry”, by deleting “telecommunications” from paragraph (a).

Source: http://www.itc.gov.fj/