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Fiji Independent Commission Against Corruption (Amendment) Act 2016

REPUBLIC OF FIJI

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION (AMENDMENT) ACT 2016

ACT NO. 13 OF 2016

I assent.

J. K. KONROTE
President

[6 June 2016]

AN ACT

TO AMEND THE FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION PROMULGATION 2007

ENACTED by the Parliament of the Republic of Fiji—

Short title and commencement

1.—(1) This Act may be cited as the Fiji Independent Commission Against Corruption (Amendment) Act 2016.

(2) This Act comes into force on a date or dates appointed by the Minister by notice in the Gazette.

(3) In this Act, the Fiji Independent Commission Against Corruption Promulgation 2007 is referred to as the "Promulgation".

Section 2 amended

2. Section 2 of the Promulgation is amended by inserting the following new definitions—

""Minister" means the Minister responsible for anti-corruption; "President" means the President of the Republic of Fiji;"

Section 2A amended

3. Section 2A of the Promulgation is amended by—

(a) deleting paragraph (da);

(b) in paragraph (g), deleting "[Cap. 21]" and substituting "(Cap. 17)";

(c) in paragraph (k), deleting "," and substituting ";"; and

(d) inserting the following new paragraph after paragraph (k)—

"(l) any offence which the Commissioner may prosecute under any written law,"

Section 5 amended

4. Section 5 of the Promulgation is amended by—

(a) in subsection (1), deleting "subject to the orders and control of" and substituting "appointed by"; and

(b) deleting subsection (2).

Section 8 amended

5. The Promulgation is amended by deleting section 8 and substituting the following—

"Appointment of officers

8.—(1) The Commissioner may appoint officers necessary to assist the Commissioner in the performance of his or her functions in accordance with this Promulgation.

(2) The officers shall be employed—

(a) on such terms and conditions as the Commissioner may think fit; and

(b) subject to the standing orders made under section 11."

Section 10 amended

6. Section 10 of the Promulgation is amended by—

(a) deleting subsection (1) and substituting the following—

"(1) An officer authorised in that behalf by the Commissioner may, without warrant, arrest a person if he or she reasonably suspects that such person has committed an offence to which this Promulgation applies, provided that, in respect of the offences under the Crimes Decree 2009 or any law repealed by the Crimes Decree 2009, the power of arrest without warrant is limited to indictable offences.";

(b) in subsection (3)(a), deleting "and";

(c) in subsection (3)(b), deleting "." and substituting "; and"; and

(d) in subsection (3), inserting the following new paragraph after paragraph(b)—

"(c) may exercise any other powers given to police officers under Part III of the Criminal Procedure Decree 2009."

Section 10A amended

7. Section 10A(8) of the Promulgation is amended by deleting "President" and substituting "Commissioner".

Section 10B amended

8. Section 10B of the Promulgation is amended by inserting "and seize such evidence" after "search such premises or place".

Section 10D amended

9. Section 10D of the Promulgation is amended by inserting the following new subsection after subsection (4)—

"(5) Any person who, in lawful custody for an offence, refuses to submit to the taking of any of the methods of identification authorised to be taken under subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine of $2,000 and to imprisonment for 3 months and after conviction, reasonable force may be used to take such methods of identification."

New sections 10E, 10F and 10G inserted

10. The Promulgation is amended by inserting the following new sections after section 10D—

"Interception warrants

10E.—(1) An officer acting under the instructions of the Commissioner may apply in writing to the High Court for a warrant if he or she has reasonable grounds to suspect or believe that a person has committed, is committing or is about to commit an offence to which this Promulgation applies.

(2) A High Court Judge may, upon receiving a written application under subsection (1), issue a warrant if he or she is satisfied that there are reasonable grounds for such suspicion or belief to authorise the covert monitoring and recording, by any means, of the conduct and communications, including telecommunications, of the person.

(3) A warrant issued under this section may be renewed by further application.

(4) A warrant issued under this section authorises any officer—

(a) to overtly or covertly enter or, in the case of a renewed warrant, re-enter any place specified in the warrant, by force if necessary, for the purpose of executing the warrant; and

(b) in the case of a renewed warrant, to continue monitoring and recording pursuant to the original warrant subject to any variation specified in accordance with subsection (8)(g).

(5) If the circumstances are such that a written application under subsection (1) is not reasonably practicable, an oral application may be made.

(6) An application, whether in writing or made orally, must include the following—

(a) the facts relied upon to show reasonable grounds for suspicion or belief;

(b) the manner by which it is proposed to undertake the monitoring;

(c) the name or names of the person or persons to be monitored, if known;

(d) the place at which the monitoring and surveillance is intended to take place;

(e) the identity of any person who may be required by the court to provide assistance for the purpose of giving effect to the warrant;

(f) the requested duration of the warrant; and

(g) where the application is made orally, the circumstances said to render a written application not reasonably practicable.

(7) In determining whether a warrant is to be granted under this section, the High Court Judge shall have regard to the following—

(a) the nature and gravity of the offence in respect of which the warrant is sought;

(b) the extent to which the privacy of any person is likely to be affected;

(c) an alternative means of obtaining the information or evidence sought and the extent to which employing such means may prejudice the investigation, through delay or any other reason;

(d) the extent to which information that may be obtained is likely to assist the investigation of the offence;

(e) the evidentiary value of any information sought to be obtained;

(f) any previous warrant sought or issued in connection with the same offence; and

(g) in the case of an oral application, the circumstances that render a written application not reasonably practicable.

(8) A warrant issued under this section must—

(a) specify the manner by which monitoring is authorised;

(b) if known, specify the name of any person or persons who may be monitored;

(c) specify the place or places at which monitoring and surveillance are authorised;

(d) specify any condition subject to which place or places may be entered pursuant to the warrant;

(e) specify any person required to provide assistance for the purpose of giving effect to the warrant and order that person to provide such assistance;

(f) specify the duration of the warrant;

(g) in the case of a renewed warrant, specify any variation to the authority conferred by the previous warrant; and

(h) authorise and require the retrieval of the monitoring and surveillance device.

(9) A warrant issued pursuant to an oral application is valid for 48 hours.

(10) Where in the case of a warrant issued under subsection (2), the Commissioner is satisfied that the grounds upon which a warrant was issued have ceased to exist, the Commissioner may apply to the High Court for the warrant to be revoked.

(11) A High Court Judge may revoke a warrant issued under this section that is in force.

(12) For the purpose of this section, an "oral application" means an application made orally in person or made by telephone, video conferencing or any other electronic means by which words can be heard.

Officer deemed always to be on duty

10F. Every officer is deemed to be on duty at all times and may at any time be detailed for duty in any part of Fiji.

No civil or criminal liability for acts done in good faith

10G.—(1) No civil or criminal action may be brought against any officer with regard to any act done in good faith and in the purported exercise of such officer's duties under this Promulgation.

(2) Where the defence to any suit or charge instituted against an officer is that the act complained of was done in obedience to a warrant purporting to be issued by a Magistrate or a Justice of the Peace, the production of the warrant is prima facie evidence that the act was lawful."

Section 11 amended

11. Section 11 of the Promulgation is amended by—

(a) in subsection (1)(b), inserting "appointment, termination," after "the"; and

(b) deleting subsection (2) and substituting the following—

"(2) The Commissioner may modify the standing orders concerning the provisions of section 8."

Section 12 amended

12. Section 12 of the Promulgation is amended by—

(a) deleting ", on behalf of the President"; and

(b) deleting paragraph (b) and substituting the following—

"(b) investigate the suspected or alleged occurrence of an offence to which this Promulgation applies."

Section 12A deleted

13. The Promulgation is amended by deleting section 12A and substituting the following—

"Prosecution of offences to which this Promulgation applies

12A. For the avoidance of doubt, the Commissioner may investigate and prosecute an offence specified in section 2Aregardless of whether this Promulgation applied to such offence at the time the offence was committed."

Section 12B amended

14. Section 12B of the Promulgation is amended by inserting the following new subsection after subsection (4)—

"(5) It is lawful for any officer authorised in that behalf by the Commissioner to make a complaint or charge against any person before a Magistrate."

Section 13 amended

15. Section 13 of the Promulgation is amended by—

(a) in subsection (1)(c), deleting "." and substituting ";";

(b) in subsection (1), inserting the following new paragraphs after paragraph (c)—

"(d) without warrant, arrest or authorise any officer to arrest a person who is suspected to have committed an offence to which this Promulgation applies;

(e) prohibit any person against whom an investigation in respect of an offence to which this Promulgation applies has commenced, from leaving the jurisdiction of the Republic of Fiji for a period of up to 30 days and may give the necessary instructions in writing to the Director of Immigration to enforce the order, provided that the power under this paragraph must only be exercised by the Commissioner and a copy of the order must be served on the suspect or at his or her last known residential address within 24 hours of the issuance of the order."; and

(c) inserting the following new sections after section 13F—

"Divulging official information

13G.—(1) No officer or former officer of the Commission nor any member or former member of the staff of the Commission shall, without the written permission of the Commissioner, publish or disclose to any person otherwise than—

(a) for an officer or member of the staff of the Commission, in exercise of his or her official functions;

(b) for a former officer or member of the staff of the Commission, in no circumstance whatsoever,

the contents of any document, communication or information whatsoever relating to or connected with the functions of the Commission which has or had come to his or her knowledge in the course of his or her duties.

(2) Any person who contravenes subsection (1) shall be guilty of an offence and on conviction shall be liable to a fine of $10,000 and to imprisonment for 2 years.

(3) A criminal prosecution and criminal sanction may be effected in addition to any disciplinary action imposed on the officer for the same conduct.

Equipment and properties of the Commission to be delivered up upon ceasing to be an officer

13H.—(1) Any officer who, having ceased to be an officer, must deliver to the person appointed by the Commissioner for that purpose, or to the officer in charge at the place at which he or she was last stationed, all equipment, clothing and property whatsoever which have been supplied to him or her or received by him or her in his or her capacity as an employee of the Commission or at the discretion of the Commissioner pay the value of such property as determined by the Commissioner.

(2) Any person who contravenes subsection (1), shall be guilty of an offence and shall be liable to a fine equivalent to the value of such property not delivered or to $1,000, whichever is higher and to imprisonment for2 years, provided that if a fine is imposed under this subsection, the court imposing the fine must direct such fine to be paid to the Commission as compensation."

Section 16 amended

16. Section 16 of the Promulgation is amended by deleting subsection (1) and substituting the following—

"(1) The Auditor-General may, at any time, have access to the financial and expenditure accounts maintained by the finance department of the Commission."

Section 17 amended

17. The Promulgation is amended by deleting section 17 and substituting the following—

"Annual report

17.—(1) The Commissioner must submit a copy of the Commission's annual report to the President and Minister within 3 months after the end of the financial year.

(2) The Minister must, as soon as reasonably practicable, cause a copy of the annual report to be laid before Parliament."

Section 17A amended

18. Section 17A of the Promulgation is amended by deleting subsection (3) and substituting the following—

"(3) The fund must be controlled by the Commissioner and applied to the following purposes—

(a) procurement for officers' gratuity, or other allowances, comforts, conveniences or other benefits as the Commissioner thinks fit;

(b) granting loans to officers as the Commissioner thinks fit; and

(c) such other matter as may, in the Commissioner's opinion, be necessary to assist officers or maintain the fund."

Consequential

19.—(1) The Proceeds of Crime Act 1997 is amended by inserting the following new section after section 4—

"References to the Director of Public Prosecutions

4A. The powers vested in the Director of Public Prosecutions by virtue of this Act are deemed to be vested in the Director of Public Prosecutions and the Commissioner of the Fiji Independent Commission Against Corruption, and any reference made in this Act to the Director of Public Prosecutions shall be construed as a reference to the Director of Public Prosecutions or the Commissioner of the Fiji Independent Commission Against Corruption."

(2) Section 3 of the Fiji Independent Commission Against Corruption (Amendment) Promulgation 2008 is hereby repealed.

Passed by the Parliament of the Republic of Fiji this 1st day of June 2016.