Fiji Sessional Legislation

(5)In subsection (4) -

"relatedyparty" of a Board member means any of the following -

(a) a spouse, child or p of the Board member;

(b) a company of which thch the Board member is a director or executive officer, and a subsidiary of such a company;

(c) a company of which a spouse, child or parent of the Board member is a director or executive officer;

(d) if the Board member, or a spouse, child or parent of the Board member, owns, or controls the exercise of votes attached to, more than the percentage of shares of a company prescribed by regulations the company;

(e) if the Board member and another person are parties to a contract, arrangement or understanding, whether formal or informal, written or not and whether or not enforceable -

(i) to acquire, hold, sell or otherwise deal in securities in concert; or

(ii) to exercise voting rights in a specified person in concert;

the other party to the contract, arrangement or understanding.

(6)The Board must take reasonable steps to ensure that members of the Board's staff, persons otherwise engaged by the Board and other persons performing or exercising functions or powers of the Board make proper and adequate disclosure of their interests.

(7)A person's membership of the FNPF, or entitlement under a retirement income product provided by the Board, is not an interest for the purposes of this section.

(8)The Board must record, and maintain a register of, all disclosures under this section.

Delegations

22. - (1) The Board may, subject to this section, by resolution, delegate to any Board member, the Chief Executive Officer, any staff member or any subsidiary of the Board any of its powers and functions, but not this power of delegation.

(2) The Chief Executive Officer may, by instrument in writing, delegate to any staff member all or any of the Chief Executive Officer's powers and functions, but not this power of delegation.

(3)A delegation may be subject to conditions specified in the resolution or instrument of delegation.

(4) A delegated power or function must be exercised or performed in accordance with the resolution or instrument of delegation.

(5)A delegation may be varied or revoked at will and does not prevent the Board or the Chief Executive Officer from exercising the delegated power or performing the delegated function.

Division 2 - Accounts, audits and reports

Financial Management Act 2004

23. - (1) This Division applies in addition to any application of the Financial Management Act 2004.

(2) If there is an inconsistency between a provision of this Division and a provision of the Financial Management Act 2004, the provision of this Division prevails to the extent of the inconsistency.

Records

24. - (1) The Board must keep written financial records that -

(a) correctly record and explain the transactions, and the financial position and performance, of itself and the funds; and

(b) will enable true and fair financial reports about itself and the funds to be prepared and audited;

and must keep them for at least 7 years after the date of the transactions to which they relate.

(2)The records are to be kept in English, and at the Board's principal place of business. They may be kept electronically, but must be able to be converted into hard copy.

Financial reports

25. - (1) The Board shall prepare, for each financial year, financial reports for each fund and the Board that consist of -

(a) balance sheets, profit and loss accounts and other financial statements for the year, as required by and consistent with, applicable accounting standards;

(b) notes to the financial statements, as required by applicable accounting standards; and

(c) a declaration under subsection (4).

(2)The financial reports may be in a single document.

(3)The financial statements and the notes together must include all information necessary to ensure that the financial report gives a true and fair view of the financial position and performance of each fund and the Board.

(4)A declaration by the Board members whether, in their opinion -

(a) there are reasonable grounds to believe that the Board will be able to pay its debts as and when they become due and payable, including its debts in relation to each fund; and

(b) the financial statement and notes are in accordance with this Decree.

(5)A declaration must -

(a) be made in accordance with a resolution of the Board;

(b) specify the date on which it is made; and

(c) be signed by a Board member.

Audit

26. - (1) The Board must ensure that each financial report is audited by an auditor, and that the auditor provides a report, in accordance with this section.

(2)If the Board does not comply with subsection (1), each Board member commits an offence.

Penalty - 50 penalty units.

(3)Strict liability applies to subsection (2).

(4)It is a defence to a prosecution for an offence against subsection (2) that the defendant-

(a) was not involved in the offence; and

(b) exercised all due diligence to ensure that the Board complied with subsection (1).

(5)For the purposes of an audit, the auditor has a right of access at all reasonable times to the books and financial records of the Board and of any entity that is a subsidiary of the Board.

(6)If -

(a) an auditor requires a Board member or a staff member to give information, explanations or other assistance in connection with an audit;

(b) the requirement is reasonable; and

(c) the Board member or staff member fails to comply with the requirement;

the Board member or staff member commits an offence.

Penalty - 100 penalty units.

(7)A registered employer commits an offence if -

(a) the auditor makes a written request of the employer for information relevant to the audit of the FNPF; and

(b) the request is a reasonable request; and

(c) the person fails to comply with the request.

Penalty - 20 penalty units.

(8) An auditor's report under this Division on financial reports must state whether, in the auditor's opinion -

(a) the reports are in accordance with this Decree, including, in particular, whether the reports give a true and fair view of the state of the affairs of the Board and the funds as at the end of the financial year to which they relate;

(b) he has obtained all the information and explanations that, to the best of the auditor's knowledge and belief, were necessary for the purposes of the audit; and

(c) the Board, Board members and staff members have given the auditor all the information, explanations and assistance that the auditor needed to conduct the audit.

(9)If the auditor is not of that opinion, the report must state so with reasons.

(10)An auditor's report under this section must specify the date on which it is made.

Annual report

27. - (1) The Board must prepare for each financial year, an annual report for each fund and for the Board.

(2)The annual reports may be in a single document.

(3)The annual reports for a financial year must include -

(a) all the information prescribed in the regulations for this subsection; and

(b) all other information that FNPF members would reasonably require to make an informed assessment of the operations and financial position of the Board and each fund.

(4)An annual report may omit material that would otherwise be included if its inclusion is likely to result in unreasonable prejudice to the commercial position of a fund but, if material is omitted, the report must say so.

Annual reports to be published

28. - (1) The Board must -

(a) within 4 months after the end of a financial year or a longer period approved by the Reserve Bank - give the Minister and the Reserve Bank a copy of the financial reports and annual reports for the financial year, and the auditor's report on them;

(b) as soon as practicable thereafter, publish the reports; and

(c) ensure that a summary of the reports is published in a national publication in Fiji.

(2) If the Financial Management Act (Amendment) Promulgation 2007 has expired, the Board must not publish the reports or summary until after it has complied with section 51(2)(b) of the Financial Management Act 2004 in relation to the reports.

PART 3 - THE FNPF

Division 1 - Operation of the FNPF

Continuation of FNPF

29. - (1) The Fiji National Provident Fund established under the former law continues in existence under that name, subject to the other provisions of this Decree and any provision of the Transition Decree.

(2)The principal purpose of the FNPF is to manage and invest FNPF members' savings for their retirement.

(3)The Board must keep and administer the FNPF.

(4)The assets of the FNPF are property of the Board.

What must be credited to the FNPF

30.The following are to be credited to the FNPF -

(a) amounts paid to or recovered by the Board as mandated contributions, additional contributions or penalty amounts;

(b) interest, profits and other returns from investments or assets of the Board, to the extent that the investments were made or the property acquired with money or other property of the FNPF;

(c) amounts paid to the Board as fees or charges for services provided by the Board in relation to the FNPF;

(d) amounts of surplus in another fund that are, in accordance with the regulations, to be transferred to the FNPF;

(e) amounts that another provision of this Decree requires to be paid to the FNPF;

(f) amounts paid to the Board for the purposes of the FNPF; and

(g) amounts lawfully paid to the Board not required by this Decree to be paid into another fund.

Application of the FNPF

31.Amounts standing to the credit of the FNPF are to be applied only as follows -

(a) in paying withdrawals in respect of FNPF members as provided in this Decree;

(b) in making investments authorised under this Decree;

(c) in meeting the expenses of the Board properly incurred in the administration of the funds and the Board;

(d) in repaying amounts paid in error to the Board or into the FNPF; and

(e) as expressly authorised by or under this Decree.

Solvency requirement for FNPF

32. - (1) The Board must ensure that the FNPF at all times meets the solvency requirement.

(2)The solvency requirement is that the value of the assets of the FNPF must at be at least equal to the percentage of the total value of the liabilities of the Board referable to the FNPF that is prescribed by regulations.

(3)For subsection (2), the prescribed percentage is -

(a) 110%; or

(b) if the actuary recommended a higher percentage in the most recent financial condition report - that higher percentage; or

(c) if a prudential standard specifies a higher percentage for this subsection - highecentage.tage.

(4)In determining whether the solvency requirement is met -

(a) the value of an asset is the market value of thet; an

(b) the following must be ignored -

(i

(i) the value of the Board's assets in respect of which the Board has a liability that is not re-corded in the FNPFs balance sheet; and

(ii) the value of any inadmissible assets of the FNPF.

(5) A contravention of subsection (1) is not an offence but may be the basis for supervisory action by the Reserve Bank under Part 11.

Division 2 - Registration of employers and admission of FNPF members

Certain persons taken to be employers

33. - (1) If -

(a) a person (the "principal") engages another person (the "contractor") under an agreement (the "contract") to carry out work for the principal; and

(b) the contractor is not registered as an employer under this Decree;

then, for the purpose of securing payment of FNPF contributions in respect of the employees of the contractor, the principal as well as the contractor is taken for the purposes of this Decree to be the employer of the contractor's employees engaged in the work and is jointly liable with the contractor to pay contributions in respect of those employees in respect of the work.

(2)Subject to any agreement between the contractor and the principal -

(a) the contractor is liable to repay to the principal all amounts paid by the principal because of this section in respect of those yees; aes; and

(b) except to the extent that the repayment has been made, the principal may deduct from money payable to the contractor under the contract the amounts paid by the ppal because of this sectionction in respect of those employees.

Registration of employers

34. - (1) If, on the day in which this Part comes into force -

(a) a person (in this section, the "employer") is ployer of another person; aon; and

(b) the employer is not registered under the former law as an employer of the person;

the employer must, no later than 6 months after this Part comes into force (the "amnesty period"), give the Board a return with the information and documents prescribed by regulations for this section.

Penalty - 100 penalty units.

(2)Strict liability applies to subsection (1).

(3) It is a defence to a prosecution for an offence against subsection (1) that the employee was an exempt employee of the employer.

(4)As soon as practicable after an employer gives the Board the return, the Board must register the employer as an employer.

Returns to be made when employees engaged

35. - (1) A person commits an offence if the person -

(a) engages another person as an employee; and

(b) fails to give to the Board, within the prescribed period after the employment commences, a return with the information and documents prescribed by regulations for this section.

Penalty - 50 penalty units.

(2)Strict liability applies to subsection (1).

(3) It is a defa defence to a prosecution for an offence against subsection (1) that the employee was an exempt employee of the person.

(4)As soon as practicable after a pegives the Board the return,turn, if the person is not already registered as an employer, the Board must register the person as an employer.

Admission of FNPF members, and ceasing to be a FNPF member

36. - (1) If an employee mentioned in a return by an employer under section 34 o-

(a) is nois not an FNPF member; and

(b) is not an exempt employee of the employer;

then, as soon as practicable after the Board receives the return, the Bmust admit the employee as e as an FNPF member.

(2)If -

(a) a person who is employed in Fiji but is not a citizen of Fiji applies to be admitted as an FNPF member; and

(b) his employer agrees to the application;

the Board must admit the person as an FNPF member.

(3)If a court makes an order under section 136(2)(a) in respect of a spouse of an FNPF member, the Board must admit the spouse as an FNPF member.

(4)If arrangements under section 27(3) of the Fiji Public Trustee Corporation Act 2006 include provision under which entitlements of a minor may be invested for the minor by the Board, the Board must admit the minor as an FNPF member.

(5)A person who is not an FNPF member but who, under the regulations, is eligible to be an FNPF member, may, on application to the Board, be admitted as an FNPF member.

(6)If -

(a) an entitlement event occurs in relation to an FNPF member; and

(b) after a payment or payments are made in relation to the event, the balance of the member's preserved and general accounts is zero dollars;

the member ceases to be an FNPF member. However, the member may be readmitted as an FNPF member in accordance with this Decree.

Division 3 - Contributions to the FNPF

Mandated contributions

37. - (1) No later than 14 days after the end of each month an employer must -

(a) pay to the Board, for each person who was an employee of the employer for all or part of the month, the amount of contributions calculated in accordance with this section; and

(b) give the Board a remittance statement complying with the requirements of the regulations in relation to those payments.

Penalty - 50 penalty units.

(2)Strict liability applies to subsection (1).

(3) a defa defence to a prosecution for an offence against subsection (1) in respect of an employee that the employee was an exempt employee of the employer.

(4)The amount of contributions for an employee for a month is the amount equal to 16% of the total wages payable to the employee by the employer for the month. The amount must be rounded up to the nearest cent.

(5)The percentage of contribution under subsection (4) shall be paid as an 8% deduction from the total wages of the employee and an 8% contribution by the employer.

Additional contributions

38. - (1) An FNPF member may at any time give a written direction to his or her employer to deduct from his or her wages additional amounts specified in the notice and pay them as additional contributions to the Board.

(2)The member may, by notice to the employer, amend or revoke the direction at any time.

(3) The employer must comply with the direction, and pay the amount deducted as contributions for the FNPF member at the same time as the employer is required to pay mandated contributions for the member.

Penalty - 100 penalty units.

(4)An FNPF member may, at any time, pay an amount to the Board as additional contributions for the member.

(5)Any other person (including an employer of an FNPF member) may, with the Board's approval, at any time, pay an amount to the Board as additional contributions for an FNPF member.

(6)The total amount of additional contributions for an FNPF member for a financial year must not exceed the limit (if any) prescribed.

Recovery of contributions from employee

39. - (1) Despite any provision of a written law or contract to the contrary, an employer may recover from the employee an amount equal to 50% of the amount paid as mandated contributions for the month, rounded up to the nearest cent. The amount may be recovered only by deduction from the employee's wages for the month in respect of which the contributions are paid.

(2)A person commits an offence if -

(a) the person recovers an amount from an employee of an employer;

(b) the recovery is on account of a payment of mandated contributions, or a payment of additional contributions as required by subsection 38(3), by the employer or a related company of the employer; and

(c) the contributions in respect of which the amount was recovered are not paid as required by this Division.

Penalty - 250 penalty units, or imprisonment for 3 years, or both.

(3)Strict liability applies in respect of sections (2) nd (c).

Penalty amounts

40. - (1) If an employer fails to pay, in full, the contributions for a particular month required by this Division, the emr must also pay to the Boar Board, as penalty, for each employee concerned, for each month or part of a month during which the contributions are unpaid -

(a) $100 for each employee concerned, for each month or part of a month during which the contributions are unpaid; or

(b) if a higher amount is prescribed by the regulations - the higher amount for each employee concerned, for each month or part of a month during which the contributions are unpaid.

(2)If a penalty amount is due and payable under this section, the Board may, on application by an employer, remit some or all of the amount.

(3)If the amount due is recovered from an employer under this section for a failure to pay contributions, the employer may not be prosecuted for an offence against sections 37 or 38(3) (as relevant) in respect of the failure.

Division 4 - Reporting to FNPbers anrs and employers

Member annual statements for FNPF members

41.For each financial year, the Board must give a member annual statement that includes the prescribed information to each person who was an FNPF member at any time during the financial year. The statement must be given as soon as possible, and in any event no later than 4 months, after the end of the financial year.

Member exit statements for FNPF members

42. - (1) If an FNPF member dies, the Board must give a member exit statement that includes the information prescribed by regulations to -

(a) the member's personal representative; and

(b) any nominee of the member who has been paid an amount in respect of the member under section 57.

The statement must be given at the same time as a payment is made in respect of the member under section 57.

Employer annual reports

43. For each financial year, the Board must give an employer annual statement that includes the prescribed information to each person who was a registered employer at the end of the financial year. The statement must be given as soon as possible, and in any event no later than 4 months, after the end of the financial year.

PART 4 - MEMBERS' ENTITLEMENTS AND ACCOUNTS IN THE FNPF

FNPF members' accounts

44. - (1) The Board must establish an account (the "FNPF account") for each FNPF member.

(2)The Board must, as soon as practicable, establish subaccounts in each FNPF member's FNPF account -

(a) 1 subaccount (the "preserved account"), for the member's preserved entitlement; and

(b) 1 subaccount (the "general account"), for the member's general entitlement.

FNPF members allocating contributions to preserved and general accounts

45. - (1) An FNPF member may, by notice to the Board, allocate a specified percentage of contributions paid in respect of the member to his or her preserved entitlement. The percentage must be more than 70%.

(2)Unless the notice specifies otherwise, a notice under subsection (1) applies to -

(a)p>(a) mandated contributions; and

(b) contributions made as required by section 38(3).

(3)The Board may make rules with respect to notices under this section. Subject to those rules, an FNPF member may revoke the notice by notice to the Board.

Other payers allocating contributions to preserved and general accounts

46. - (1) A person who pays contributions in respect of an FNPF member may, by notice to the Board when the contributions are paid, specify the allocation of the contributions as between the member's preserved and general entitlements.

(2) Subsection (1) does not apply to mandated contributions or contributions paid as required by section 38(3).

(3)The Board may make rules with respect to notices under this section. Subject to those rules, a person who gives a notice under subsection (1) may revoke a notice by notice to the Board.

Crediting rates

47. - (1) For each financial year, the Board must determine, in accordance with the regulations -

(a) whether there has been an increase in value of the assets of the FNPF since the last determination;

(b) if there has been an increase - how much of the increase is available to be allocated to FNPF members (the "available amount");

(c) if there is an available amount - the percentages by which preserved and general entitlements are to be increased to distribute the available amount (the "crediting rate"); and

(d) if a crediting rate has been determined - a pro-rata crediting rate to apply until the next crediting rate is determined.

(2) The Board must not determine a crediting rate or a pro-rata crediting rate for the FNPF unless the solvency requirement for the FNPF is met.

(3)The Board must not determine a crediting rate or a pro-rata crediting rate for the FNPF if an amount of an advance under section 140 has not been repaid,

(4) If the Board has determined a crediting rate for a financial year, it may, at any time during the year, determine a lower pro-rata crediting rate.

Amounts to be credited to FNPF members' entitlements

48. - (1) Subject to this section, the Board must credit 70% of the amount of contributions received by the Board in respect of an FNPF member to the member's preserved entitlement.

(2) Subject to subsections (3), (4) and (6), if a notice under section 45(1) is in force for an FNPF member, the Board must credit contributions received by the Board to the member's preserved entitlement in accordance with the notice.

(3) Subject to subsections (4) and (6), if a notice under section 46(1) is in force for an FNPF member, the Board must credit contributions received by the Board to which the notice applies to the member's preserved and general entitlements, in accordance with the notice.

(4) If an amount is withdrawn from an FNPF member's preserved entitlement under section 58, then, despite any other provision of this Decree and any notice, all contributions received by the Board in respect of the member must be credited to the member's preserved entitlement for the 5 years after the amount is withdrawn or until the amount so credited equals the amount withdrawn from the preserved entitlement (whichever comes first).

(5)If the Board has recovered a penalty amount in respect of an FNPF member, the Board must credit to the member's preserved entitlement with the proportion of the amount recovered determined by the Board.

(6) If payment has been made from an FNPF member's preserved entitlement under section 52, all contributions received by the Board thereafter in respect of the member must be credited to the member's general entitlement.

(7)The Board must credit all contributions and penalty amounts received by the Board in respect of an FNPF member that are not required to be credited to the member's preserved entitlement to the member's general entitlement.

(8)The Board may make arrangements under which an FNPF member may, by notice to the Board, direct that a specified amount be transferred from his or her general entitlement to his or her preserved entitlement. The Board must comply with a direction made in accordance with those arrangements.

(9) If the Board has determined a crediting rate for a financial year, the Board must credit each preserved entitlement and each general entitlement with the amount calculated as -

crediting rate x average of amounts of the entitlement at intervals in the year determined by the Board.

What can be debited from FNPF members' entitlements

49. - (1) The Board must debit an FNPF member's preserved entitlement with the following -

(a) amount withdrawn or deducted from the entitlement in accordance with this Decree; and

(b) fees and charges payable by the member in respect of the FNPF, to the extent that they cannot be met from the member's general entitlement.

(2)Amounts are not otherwise to be debited from an FNPF member's preserved entitlement.

(3)The Board must debit an FNPF member's general entitlement with -

(a) amount withdrawn or deducted from the entitlement in accordance with this Decree; and

(b) fees and charges that this Decree or the regulations authorises to be debited to the entitlement.

PART 5 - PAYMENTS FROM THE FNPF

Division 1 - Board approval

Board approval required

50. - (1) Despite any other provision of this Decree, an amount may not be withdrawn from an FNPF member's preserved or general entitlement unless the Board, on application, authorises the withdrawal. The Board must authorise the withdrawal if the amount is, under this Decree, payable.

(2)An application for a withdrawal must be made -

(a) by the member;

(b) if the member is a voluntary or involuntary patient in a mental hospital or facility under the Mental Health Decree 2010 - by or with the authority of the person's manager appointed under that Decree;

(c) if the member has died - by a nominee of the member; or

(d) otherwise - by a person specified in the regulations for this section.

Division 2 - Payment on entitlement events

Payment on entitlement events

51. Subject to this Decree, an FNPF member's preserved entitlement and general entitlement are payable in respect of the member if the Board is satisfied, on application, that an entitlement event has occurred in relation to the member.

Withdrawals on reaching prescribed age - preserved entitlements to be withdrawn

52. For the entitlement event that an FNPF member reaches the age prescribed for paragraph (a) of the definition of "entitlement event" in section 4(1), an application for withdrawal of the member's preserved entitlement must be for the whole of the entitlement on the date of withdrawal.

Withdrawals on physical or mental incapacity, leaving Fiji or death - preserved and general entitlements to be withdrawn

53. - (1) For the entitlement event -

(a) that an FNPF member becomes physically or mentally incapacitated from engaging in any further employment; or

(b) that an FNPF member has left, or is about to leave, Fiji permanently to reside in another country; or

(c) the FNPF member dies;

an application for withdrawal must be for the whole of the member's preserved and general entitlements at the date of withdrawal.

How entitlements on reaching prescribed age or on physical or mental incapacity
are to be paid

54. - (1)This section applies for the entitlement events -

(a) that an FNPF member reaches the age prescribed for paragraph (a) of the definition of "entitlement event" in section 4(1); and

(b) that an FNPF member becomes physically or mentally incapacitated from engaging in any further employment.

(2)If the amount of the member's entitlements that is withdrawn is less than the conversion threshold, the amount is to be paid as a lump sum.

(3) The member's application to withdraw his or her entitlements must specify whether the amount withdrawn is to be paid -

(a) as a lump sum; or

(b) in accordance with subsection (4); or

(c) as to part, in a lump sum, and as to the balance, in accordance with subsection (4) (and if it does this, the application must specify the amount of the lump sum).

(4) Payment in accordance with this subsection is made as follows -

(5)Payments to the Board under subsection (4) are to be made by transferring the amount of the payment from the FNPF to the Retirement Income Fund.

Withdrawals must not be used to buy retirement income products that are not approved

55. - (1) The Board must not pay an amount withdrawn from the FNPF in respect of an FNPF member as payment or part payment for a retirement income product unless the product is an approved retirement income product.

(2)A person commits an offence if -

(a) the person accepts, or offers to accept, from the Board an amount in respect of an FNPF member;

(b) the amount is paid by the Board as set out in section 54 as payment or part payment for a retirement income product; and

(c) the retirement income product is not an approved retirement income product.

Penalty - 200 penalty units.

(3)Strict liability applies to subsections (2)(b) a).

Nominations as to payment of entitlements on death

56. - (1) An FNPF member may give the Board a nomination, signed by the member, giving directions as to payment of the member's entitlements out of the FNPF on his or her death.

(2)The nomination may deal with any or all of -

(a) the member's preserved or general entitlement;

(b) Special Death Benefit payable in respect of the member; and

(c) amounts payable under an annuity in respect of the member after the member dies, as set out in Schedule 4.

(3)The nomination must specify how much of the amounts to which the nomination relates is to be paid to each nominee. Without limiting how it may do this, it may do this by specifying, for a nominee, a percentage of the amount concerned.

(4)A nomination for subsection (2)(c) is effective only if only 1 person is nominated.

(5)An FNPF member's nomination is revoked only as follows -

(a) by giving the Board written notice of the revocation;

(b) by a later nomination; or

(c) on the member's marriage.

(6)A nomination of a person ceases to have effect on the person's death.

Payment on FNPF member's death

57. - (1) In paying an FNPF member's preserved and general entitlements on his or her death, the Board must comply with any current nomination by the member. However, the Board may only pay a nominee who was, at the time of the member's death -

(a) the spouse of the member;

(b) a parent or child of the member;

(c) an individual who was financially dependent on the member; or

(d) a person specified in rules made by the Board for this section.

(2)If a nominee of an FNPF member (not the surviving spouse of the member) is under 18 on the date of determination of the application for withdrawal, the Board must pay the amount for that nominee to the High Court.

(3)If -

(a) a nomination by an FNPF member does not cover all of the amount payable in respect of the member on his or her death; or

(b) because of subsection (1), the Board cannot pay some or all of the amount payable in respect of an FNPF member on his or her death;

(the amount not covered, or that cannot be paid, is the "unallocated amount"), the Board must pay the unallocated amount into the High Court for disposition according to law.

(4)The High Court may, on application, make such orders as are just for the disposition of an amount paid in under subsection (1) or (2).

(5)If -

(a) the High Court makes an order in favour of a person under subsection (4); and

(b) the pere person is under 18;

then, the High Court shall hold the amount to be paid in trust for the benefit of the person.

(6)Subsection (5) does not apply is the person is the spouse of the deceased FNPF member.

(7)Where no application is made in respect of an amount paid into the High Court under subsection (1) or (2) within one year after it is so paid, the amount is to be repaid to the Board, and credited to the FNPF.

(8)If a person is found to be entitled to some or all of an amount credited to the FNPF under subsection (7), the Board must pay the person the amount to which he or she is entitled, together with an amount equal to the amount that would have been credited under section 48 if the amount credited to the FNPF under subsection (7) had been credited to an account in the FNPF for the person paid.

Division 3 - Other withdrawals

Housing finance assistance

58. Subject to this Decree, amounts in respect of an FNPF member are payable, out of the member's preserved entitlement, for housing finance assistance in accordance with Schedule 3.

Early withdrawals

59. - (1) The Board may make rules making provision for the withdrawal of amounts of FNPF members' general entitlement by w assistance -

(a) for any of the following -

(i) medical expenses;

(ii) education expenses;

(iii) funeral expenses; and

(iv) other matters prescribed in regulations;

in respect of the FNPF member concerned or in respect of any of the member's parents, spouse or children; or

(b) by way of housing assistance.

(2)The Board must publicise rules made under subsection (1).

Withdrawals amounts ind for certain minors

60. If -

(a) a a) a person is an FNPF member under section 36(4); and

(b pthe person applies to the Board, within 2 years after turning 18, for payment of an amount from the person's preserved or genentitlement (or both); and

(c) at the time of the application, the person is nots not employed by a registered employer;

the amount is payable to the person -

(d) out of the person's general entitlement; and

(e) to the extent that the general entitlement is insufficient - out of the person's preserved entitlement.

PART 6 - RETIREMENT INCOME PRODUCTS

Division 1 - Board to provide retirement income products

Board to provide certain retirement income products

61. - (1)The Board must provide the following ("basic annuities") -

(a) a single life annuity, which provides annuity payments in respect of 1 person for his or her life;

(b) a joint life annuity, which provides –

(i) an annuity for a person for his or her life; and

(ii) after the person's death, for his or her spouse for the spouse's life;

(c) a term annuity, which provides an annuity for a specified period (which must be at least 5 years and not more than 15 years).

(2)For subsection (1) (b) (ii), the reference to the person's spouse is reference to his or her spouse at the time when the annuity was purchased.

(3)The terms on which those annuities are provided must comply with any requirements of Schedule 4. The Board may determine other terms, not inconsistent with those in Schedule (4) for basic annuity.

(4) The Board must review the conversion factors for basic annuities at least once a year, and may review them more frequently, to ensure that they are sustainable and will not imperil the solvency of the Retirement Income Fund or the FNPF.

(5)The Board may, by written instrument, amend the conversion factors. The Board must not do so unless the actuary has determined that the amendment is necessary to ensure that solvency of the Retirement Income Fund and the solvency of the FNPF will not be imperilled.

(6) The Board must publish any amendment to conversions in the Gazette, and otherwise publicise the amendment.

(7)An instrument amending conversion factors comes into force -

(a) on the date of its Gazettal; or

(b) if a later date is specified in the instrument as the date on which it comes into force - that later date.

(8) An instrument amending conversion factors is not a legislative instrument for the purposes of the Interpretation Act (Cap. 7).

Other retirement income products

62. The Board may provide additional retirement income products, in accordance with Division 3 of this Part.

Division 2 - Retirement Income Fund

Retirement Income Fund

63. - (1) The Board must, as soon as practicable after day on which this Part comes into force, establish a fund to be called the Retirement Income Fund.

(2)The principal purpose of the Retirement Income Fund is to support the obligations of the Board to make payments under basic annuities.

(3)The Board must keep and administer the Retirement Income Fund in accordance with this Decree.

(4)The assets of the Retirement Income Fund are property of the Board.

What must be credited to the Retirement Income Fund

64.The following are to be credited to the Retirement Income Fund -

(a) amounts withdrawn from the FNPF and used to buy basic annuities;

(b) amounts of interest, profits and other returns from investments or property of the Board, to the extent that the investments were made or the property acquired with money or other property of the Retirement Income Fund;

(c) amounts that another provision of this law requires to be paid to the Retirement Income Fund;

(d) amount recovered as overpayments in respect of basic annuities; and

(e) amounts paid to the Board for the purposes of the Retirement Income Fund.

Application of the Retirement Income Fund

65. Amounts standing to the credit of the Retirement Income Fund are to be applied only as follows -

(a) in making payments under basic annuities;

(b) in making investments authorised under this Decree;

(c) in meeting the expenses of the Board properly incurred in managing and administering the Retirement Income Fund;

(d) by transferring surplus in the Retirement Income Fund to the FNPF in accordance with the regulations; and

(e) in repaying amounts paid in error into the Retirement Income Fund.

Division 3 - Additional retirement income products

Approval of additional retirement income products

66. - (1) The Reserve Bank may, on application by a person who proposes to provide a retirement income product (the "proposed provider"), approve the product for the purposes of this Decree.

(2)The person must be -

(a) the Board;

(b) a bank licensed under the Banking Act 1995;

(c) an insurer as defined in the Insurance Act 1998; or

(d) a person prescribed by regulations for this section,

whereby Government approval shall be required before any person under subsections (2) (b), (c) and (d) makes an application under subsection (1).

(3)The Reserve Bank may determine requirements and processes for applications under subsection (1).

(4)The Reserve Bank may require an applicant to provide additional information in connection with the application, including reports from an actuary or an auditor in relation to the application. The Reserve Bank is not bound to deal further with the application until the requirement is satisfied.

(5)The Reserve Bank is not to approve a retirement income product unless satisfied that-

(a) the proposed provider -

(i) in providing the product, will act with integrity, prudence and professional skill;

(ii) has and will maintain a sound financial position and not cause or promote instability in Fiji's financial system; and

(iii) has sufficient capital, or has made arrangements satisfactory to the Reserve Bank, to ensure that it can meet its payment obligations in respect of the product; and

(b) the proposed provider otherwise meets and will continue to meet the requirements of the prudential standards;

(c) the arrangements for administering the retirement income product (including for maintaining accounts and delivering payments to annuitants) are adequate and appropriate; and

(d) the terms on which the retirement income product is to be provided –

(i) meet the requirements of the prudential standards; and

(ii) are otherwise reasonable and appropriate.

(6)Section (5)(a) does not apo the Boae Board.

(7)A prudential standard may prescribe additional criteria, not inconsistent with this Decree, for approvals.

(8)An aal of a retirement income product may be subject to conditinditions specified in the instrument of approval. The conditions may include—

(a) a condition that the proposed provider establish and maintain a fund, in accordance with the requirements of the Reserve Bank, to support its obligations referable to the product; and

(b) a condition that the proposed provider adopt the Code of Fair Practice, with modifications (if any) specified in the instrument of approval, and include in the terms on which the product is provided an undertaking by the provider to comply with its obligations under the Code of Fair Practice.

(9)If -

(a) the Board is the proposed provider for a proposed retirement income product; and

(b) the Reserve Bank requires a fund to be established as mentioned in subsection (8) in respect of the product; and

(c) after considering a report from the actuary on the matter, the Reserve Bank approves a transfer of a specified amount from the FNPF to the proposed fund;

the specified amount is payable out of the FNPF to the proposed fund.

Suspension or revocation of approval on request

67. The Reserve Bank may, on written request by the person to whom the approval of a retirement income product was given, by notice to the person -

(a) suspend the approval for the period specified in the notice; or

(b) revoke the approval.

Suspension or revocation of approval

68. - (1) This section applies if it appears to tse Reserve Bank that -

(a) the provider of an approved retirement income product -

(i) has not provided the product within 12 months afte date of the approval;

(ii) in providing the the product, is not acting act with integrity, prudence and professional skill;

(iii) does not have a sound financial position or may cause or promote instability in Fiji's financial system;

(iv) does not or will not have sufficient capital, and has not made arrangements, satisfactory to the Reserve Bank, to ensure that it can meet its payment obligations in respect of the product;

(v) does not meet or will not meet a requirement of the prudential standards; or

(

vi) gave false or misleading information in relation to the application for approval or in relation to the product (either before or after the approval);

(b) the arrangements for administering an approved retirement income product (including for maintaining accounts and delivering payments to annuitants) are not adequate or appropriate;

(c) the terms on which a retirement income product is to be provided -

(i) do not meet the requirements of this Decree or the prudential standards; or

(ii) are not otherwise reasonable and appropriate; or

(d) an event or circumstance prescribed for this section has occurred in relation to an approved retirement income product.

(2)The Reserve Bank may, by notice to the provider of an approved retirement income product -

(a) suspend the approval of the product for the period specified in the notice; or

(b) revoke the approval;

but must not do so unless –

(c) it has given the provider written notice –

(i) of its intention to take the proposed action;

(ii) stating the reasons for the proposed action; and

(iii) requiring the provider to show cause within a specified period (at least 21 days) why the action should not be taken; and

(d) it has taken into account any representations made by or for the provider.

(3)The Reserve Bank may suspend an approval without giving notice as required by section (2)(c) if satisfied as reble groungrounds that it is necessary to do so urgently to prevent or mitigate damage to the interests of financial institutions, clients of financial instons, tial buyers of the retirement income product or F or Fiji'siji's financial system, but the Reserve Bank must -

(a) give the provider the notice as soon as practicable; and

(b) having considered any representations made by or for the provider - rescind the action taken, or take any action that may be taken under subsection (2).

ter">Existing rights on suspension or revocation

69. - (1) A revocation or suspension of approval of an approved retirementme product does not affect the retirement income product prct provider's obligations in relation to the product assumed before the revocation or suspension.

(2)If the Reserve Bank suspends or revokes the approval of an approved retirement income product, it must also give such directions to the provider as are, in the opinion of the Reserve Bank, necessary or desirable to protect the interests of the annuitants.

(3)The provider must comply with the directions.

Penalty - 100 penalty units.

Notice of approvals, suspensions and revocations

70. The Reserve Bank must notify all approvals, and all suspensions and revocations of approvals, under this Division in the Gazette, as soon after the event as practicable.

Division 4 - Disclosure obligations and unfair practices

Disclosure requirements

71. - (1) A person (the "provider") commits an offence if the provider -

(a) provides an approved retirement income product to another person; and

(b) did not, at least 7 days before providing the product, give the other person a current key features statement for the product.

Penalty - 200 penalty units.

(2)A person (the "provider") commits an offence if the provider -

(a) provides an approved retirement income product to another person; and

(b) gave the other person a key features statement for the product that did not comply with the requirements of the regulations.

Penalty - 200 penalty units.

(3)Strict liability applies to subsections (1 (2).

(4)It i)It is a defence to a prosecution for an offence under subsection (2) the defendant -

(a) made all inquiries that were reasonable in the circumstances; and

(b) after doin believed on reasonable grounds that the key features statement complied with the requiremeirements of the regulations.

Requirements for applications for approved retirement income products

72. – (1) A person must not provide an approved retirement income product to another person except on written application by the other person.

Penalty - 200 penalty units.

(2) A person must not provide an approved retirement income product to another person unless the application form used for the application for the product was a form attached to or formed part of a current key features statement for the product.

Penalty - 200 penalty units.

Prohibition of false and misleading statements

73. - (1) A person commits an offence if -

(a) the person engages in conduct in relation to an approved annuity; and

(b) the conduct is misleading or deceptive or is likely to mislead or deceive.

Penalty - 100 penalty units.

(2)Strict liability applies to section (1)(b).

(3) Without limiting subsection (1), the following conduct in relation to an approved retirement income product is misleading or deceptive -

(a) falsely representing that the product is of a particular standard, quality, val, value or grade;

(b) falsely representing that a particular person has agreed to acquire the product;

(c) representing that the product has a sponsorship, approval, performance characteristics, use or benefits that it does not have;

(d) representing that the product has a sponsorship, approval or affiliation that it does not have;

(e) making a false or misleading representation with respect to the cost of the product;

(f) making a false or misleading representation concerning the need for the product; or

(g) making a false or misleading representation concerning the existence, exclusion or effect of a condition, warranty, guarantee, right or remedy in relation to the product.

Code of Fair Practice

74. - (1) The Board must formulate a Code of Fair Practice in accordance with the requirements of Schedule 5.

(2)The Code must be consistent with this Decree and other written laws.

(3)The Board must submit the Code to the Reserve Bank for approval.

(4)If the Reserve Bank approves the Code, the Board must -

(a) publicise the Code; and

(b) comply with the Code.

(5)The Board must review the Code at least once every 3 years, but must not amend the Code without the Reserve Bank's approval. The Board must publicise any approved amendments to the Code.

(6)If an FNPF member or an annuitant suffers loss because of a failure by the Board to comply with an obligation under the approved Code, the member or annuitant may recover the amount of the loss from the Board by action in a court of competent jurisdiction.

(7)The amount recoverable by an FNPF member or an annuitant under subsection (6) -

(a) is reduced to the extent that the loss was caused by an act or omission of the member or annuitant; and

(b) is payable out of the FNPF.

Unfair practices

75. - (1) The Reserve Bank may, by notice in the Gazette, determine that a specified practice in relation to an approved retirement income product is an unfair practice.

(2)The Reserve Bank must not do so unless satisfied that the practice is unfair to annuitants or prospective annuitants, or is misleading or deceptive.

(3)A person commits an offence if -

(a) the person engages in a practice; and

(b) the conduct is an unfair practice.

Penalty - 100 penalty units.

(4)Strict liability applies to subsection (3)(b).

Repayments of amounts paid for approved retirement income products

76. - (1) This section applies if -

(a) a person (the "provider") issues an approved retirement income product to another person; and

(b) either -

(i) the key features statement provided to the other person in relation to the provision of the product did not comply with the requirements of this Decree; or

(ii) the other person was induced to acquire the product by conduct that contravened sections 73 or 75(3).

(3)The other person may only exercise the right by giving the per written notice within 2 months after the other person beon becomes aware, or should reasonably have become aware, that the key features statement did not comply, or that the conduct contravened sections 73 or 75(3), whichever is relevant. The right expires at the end of 3 years after the product was acquired.

(4)If the other person cancels the retirement income product, the provider must repay the amount paid to acquire the product, and must do so within 1 month after it receives the notice of cancellation.

(5)The other person is not to be subject to any liability in respect of exercising a right to cancel the retirement income product.

(6)If the provider is a company and does not repay the amount as required by subsection (4), then, in addition to the provider, each executive officer of the provider is personally liable to repay the amount.

(7)The other person may, by action in a court of competent jurisdiction, recover from the provider, and from any person involved in the contravention referred to in subsection (1) (b), the amount of any loss that the annuitant suffers because of the contravention.

PART 7 - SPECIAL DEATH BENEFITS

Special death benefit premiums etc

77. - (1) For each financial year, the Board must determine, in accordance with the regulations and on the advice of the actuary -

(a) the amount of special death benefit in respect of the financial year;

(b) amounts or rates of special death benefit premium for the financial year; and

(c) the instalments by which the amount of the special death benefit premium is to be deducted from FNPF members' entitlements.

(2) Different amounts of special death benefit may be determined for different circumstances or different classes of FNPF members.

(3) Amounts of special death benefits premium so determined must be deducted from FNPF members' general entitlement and credited to the Special Death Benefits Fund.

Special death benefits

78. - (1) Subject to this Decree, special death benefit is payable, in accordance with the Board's determination under section 79 for the relevant financial year, in respect of an FNPF member who dies and who, immediately before he or she died, met the eligibility criteria prescribed by the regulations.

(2)Special death benefits in respect of an FNPF member are payable in the same way as entitlements on the death of the member are payable.

The Special Death Benefits Fund

79. - (1) The Board must, as soon as practicable after this Part comes into force, establish a fund to be called the Special Death Benefits Fund.

(2)The principal purpose of the Special Death Benefits Fund is to support the obligations of the Board in respect of special death benefits under this Decree.

(3)The Board must keep and administer the Special Death Benefits Fund.

(4)The Board must allocate to the Special Death Benefits Fund such of the assets of the Board as will ensure that an actuary is able to issue a funding and solvency certificate for the fund.

(5)The assets of the Special Death Benefits Fund are property of the Board.

What must be credited to the Special Death Benefits Fund

80. The following are to be credited to the Special Death Benefits Fund -

(a) amounts deducted from FNPF members' general entitlement as special death benefits premium;

(b) interest, profits and other returns from investments or property of the Board, to the extent that the investments were made or the property acquired with money or other property of the Special Death Benefits Fund;

(c) amounts paid to the Board as fees or charges for services provided by the Board in relation to the Special Death Benefits Fund;

(d) amounts that another provision of this Decree requires to be paid to the Special Death Benefits Fund; and

(e) amounts paid to the Board for the purposes of the Special Death Benefits Fund.

Application of the Special Death Benefits Fund

81. Amounts standing to the credit of the Special Death Benefits Fund are to be applied only as follows -

(a) in paying special death benefit as provided in this Decree;

(b) in making investments authorised under this Decree;

(c) by transferring surplus in the Special Death Benefits Fund to the FNPF in accordance with the regulations;

(d) in meeting the costs necessarily and properly incurred by the Board in managing and administering the Special Death Benefits Fund; and

(e) in repaying amounts paid in error into the Special Death Benefits Fund.

Board not an insurer

82. The Board is not an insurer for the purposes of the Insurance Act 1998.

Special death benefit not to be considered in certain cases

83. An amount paid as special death benefit in respect of an FNPF member must not be taken into consideration in assessing compensation or damages payable to the dependants or beneficiaries of the member under the Compensation to Relatives Act (Cap. 29).

PART 8 - OTHER PROVISIONS APPLICABLE TO FUNDS

Supplementary Fund

84. - (1) The Board must, as soon as practicable after this Part comes into force, establish a fund to be called the Supplementary Fund.

(2)The Board must keep and administer the Supplementary Fund.

(3)The Board must allocate to the Supplementary Fund any assets that a written law provides are to be allocated to the Fund.

(4)The assets of the Supplementary Fund are property of the Board.

What must be credited to the Supplementary Fund

85. The following are to be credited to the Supplementary Fund -

(a) amounts required by this Decree or another written law to be credited to the Supplementary Fund;

(b) amounts of interest, profits and other returns from investments or property of the Board, to the extent that the investments were made or the property acquired with money or other property of the Supplementary Fund; and

(c) amounts paid to the Board for the purposes of the Supplementary Fund.

Application of the Supplementary Fund

86. Amounts standing to the credit of the Supplementary Fund are to be applied only as follows -

(a) in making payments authorised or required by this or another written law to be paid from the Supplementary Fund;

(b) in making investments authorised under this Decree;

(c) in meeting the expenses of the Board properly incurred in managing and administering the Supplementary Fund;

(d) by transferring surplus in the Supplementary Fund to the FNPF in accordance with the regulations; and

(e) in repaying amounts paid in error into the Supplementary Fund.

Estimates of liabilities

87. - (1) For each fund (not the FNPF), the actuary must prepare estimates of the Board's liabilities referable to the fund.

(2)The estimates must be as at -

(a) the date of the fund's establishment; and

(b) the date of each later funding and solvency certificate for the fund.

(3)In making an estimate for a fund, the actuary must -

(a) apply relevant professional standards and actuarial principles; and

(b) take into account -

(i) the fund's investment guidelines;

(ii) the nature and quality of the assets of the fund;

(iii) the likely financial position of the fund and the payment obligations of the fund over time; and

(iv) any other matter that a prudent actuary would take into account.

Funding and solvency certificates

88. - (1) The Board must ensure that there is in force at all times, for each fund (not the FNPF), a funding and solvency certificate from the actuary.

(2)A funding and solvency certificate for a fund is a certificate that -

(a) certifies that, in the actuary's opinion, the value of the assets of the fund as at the date of the certificate, together with other assets that the actuary considers will become assets of the fund while the certificate is in force, will be sufficient to enable the Board to meet the Board's liabilities referable to the fund, including under a range of adverse conditions specified by the actuary;

(b) states the period for which it is in force; and

(c) otherwise complies with the requirements of the regulations.

(3)A funding and solvency certificate ceases to be in force for -

(a) at the end of 3 years from the date of its issue;

(b) if the certificate specifies a shorter period for the certificate - at the end of the specified period;

(c) if a prudential standard specifies a shorter period for the certificate - at the end of the specified period; or

(d) if the certificate states that a specified event will require the solvency of the fund to be re-examined - if the event occurs.

(4)In determining whether to issue a funding and solvency certificate for a fund, the actuary must -

(a) apply relevant professional standards and actuarial principles; and

(b) take into account -

(i) the fund's investment guidelines;

(ii) the nature and quality of the assets of the fund;

(iii) the likely financial position of the fund and the payment obligations of the fund over time; and

(iv) any other matter that a prudent actuary would take into account; and

(c) not take into account any inadmissible assets of the fund.

(5) A contravention of subsection (1) is not an offence but may be the basis for supervisory action by the Reserve Bank under Part 11.

Board not subject to direction

89. - (1) Except as expressly provided by this Decree, the Board's powers in relation to the management, investment and application of a fund are not subject to direction by any other person, and its discretions in relation to the management, investment and application of the fund are not to be exercised by any other person.

(2)Subsection (1) -

(b) does not apply to –

(i) a direction given by a court; or

(ii) a direction given under section 48(8) or 56(1).

Investments

90. - (1) Subject to this Decree, property of a fund that is not immediately required to be paid may be invested or applied consistently with applicable investment guidelines.

(2)Despite any rule of law or principle of equity to the contrary, for the purpose of investment, property of a fund may be mixed with property of another fund.

Investment guidelines

91. - (1) The Board must formulate investment guidelines for each fund, and must review the guidelines at least once every 12 months.

(2)The investment guidelines for a fund must:

(a) be consistent with, and be formulated with a view to achieving, the principal purpose of the fund set out in this Decree;

(b) conform to the requirements of this Decree and applicable prudential standards; and

(c) specify –

(i) the classes of investments that are permitted investments of the fund;

(ii) the classes of investments that are not permitted investments of the fund;

(iii) the classes of investments that the fund is required to hold;

(iv) the maximum and minimum percentages of each class of investment that the fund may or must hold; and

(v) the criteria for selection of particular investments.

(3)For subsection (2) (c) (v), criteria may include -

(a) requirements as to ratings by recognised ratings agencies in respect of investments or assets;

(b) the period for which the fund may hold an investment; and

(c) criteria related to risk management, including the risks associated with a lack of diversity in the fund's assets and, for overseas investments, sovereign risk, foreign exchange risk.

(4)In formulating and reviewing investment guidelines for a fund—

(a) the Board must obtain and take into account the advice of an actuary; and

(b) the matters that the Board must have regard to include—

(i) the asset allocation and composition of the investments of the fund;

(ii) the risks involved in the investments proposed to be authorised by the guidelines;

(iii) how those risks are to be managed;

(iv) the likely return from investments proposed to be authorised by the guidelines;

(v) the desirability of maintaining the real value of the capital of the fund;

(vi) the extent to which the risks associated with the fund's investments are concentrated (for example, by sector or by counterparty);

(vii) the extent to which the investments are diverse or expose the fund to risk from inadequate diversification;

(viii) the liquidity and term of the fund's investments, having regard to its expected cash flow requirements; and

(ix) the ability of the Board to discharge its existing and prospective liabilities in relation to the fund.

(5)The Board must not invest any money or assets of a fund in a way that is inconsistent with the investment guidelines for the fund in force at the time the investment is made.

(6)The Board may -

(a) obtain and consider advice reasonably required for the management or investment of a fund's assets, including in relation to the formulation of investment guidelines, from a person who the Board reasonably believes is competent to give the advice; and

(b) pay out of the fund the reasonable costs of obtaining the advice.

(7)The Board must make publicly available the asset allocations for a fund made in accordance with the investment guidelines for the fund.

Derivatives

92. - (1) The Board may acquire a derivative only for the purpose of -

(a) protecting the value of an investment of a fund (other than a derivative); or

(b) protecting the return on an investment of a fund (other than a derivative);

and must not acquire a derivative for the purpose of speculation or leverage.

(2)In this section -

"derivative" means a financial asset or liability the value of which depends on, or is derived from, other assets, liabilities or indexes.

Certain transactions prohibited

93. – (1) The Board must not, directly or indirectly -

(a) undertake a liability by way of guarantee or other credit enhancement; or

(b) give a security interest (however described) over assets of a fund.

(2)The Board must not lend money of the Retirement Income Fund or the Special Death Benefits Fund.

(3)A loan made with the money or property of the FNPF cannot be money or property of the Retirement Income Fund or the Special Death Benefits Fund.

(4)The Board must not lend money of the FNPF, or use assets of the FNPF to give any financial assistance to an FNPF member, or a relative of an FNPF member, except in accordance with the regulations.

(5)Subsections (1), (2) a) extend to acts acts carried out through agents of the Board (such as investment managers).

(6) The Board must not do anything mentioned in subsection (1), (2) or (4) through a subsidiary of the Board unless the Reserve Bank has approved.

PART 9 - PROTECTION OF ENTITLEMENTS

Amounts etc not subject to sequestration
94. - (1) Except as provided by this Decree, none of the following -

(a) amounts paid under this Decree as mandated or additional contributions;

(b) amounts of an FNPF member's preserved or general entitlement;

(c) an FNPF member's entitlements under this Decree;

(d) amounts paid as an FNPF member's entitlements under this Decree, so long as they retain that character;

(e) amounts payable to a person as special death benefit under this Decree;

(f) amounts payable to a person under an approved retirement income product;

and no right of a person in relation to those amounts and entitlements –

(i) are capable of being assigned or otherwise disposed of; or

(ii) are capable of being pledged, charged or otherwise being made subject to a security interest (however described); or

(iii) are liable to be attached, sequestrated or levied upon for or in respect of any debt or claim.

(2)A person commits an offence if -

(a) the person engages in conduct; and

(b) the conduct has the effect of recognising or giving effect to an assignment, disposition, pledge, charge, attachment, sequestration or levy; and

(c) the assignment, disposition, pledge, charge, attachment, sequestration or levy was contrary to subsection (1).

Penal100 p100 penalty units.

(3)Strict liability attaches to subsection (2)(c).

Bankruptcy of employee

95. Despite any other written law, the bankruptcy of an employee does not affect the liability of his or her employer to pay mandatory contributions in accordance with this Decree.

Bankruptcy, liquidation, etc, of employer
96.—(1) This section applies if a trustee in bankruptcy, liquidator, receiver, personal representative or similar person (a "trustee") is dealing with the property, business or estate of an employer who has failed to pay contributions as required by this Decree.

(2)The Board must, on application by the trustee, determine the amount payable to discharge the employer's liability in respect of unpaid contributions. A determination has effect according to its terms.

(3)Despite any other written law, the trustee must not distribute any of the property, business or estate of the employer unless the Board has determined an amount under subsection (2) and certified that that amount has been paid.

(4) If the trustee makes a distribution contrary to subsection (3), the trustee is personally liable to discharge the employer's liability in respect of unpaid contributions.

PART 10 - ENFORCEMENT

Division 1 - Inspectors and their powers

Appointment

97. - (1) The Chief Executive Officer may, in writing, appoint a staff member as an inspector.

(2)A person must not interfere with or impede an inspector performing functions under this Part.

Penalty - penalty units, or imprisonment for 1 year, or both.

Identity cards

98. - (1) The Chief Executive Officer must issue an identity card, in an approved form, to each inspector.

(2)If a person –

(a) ceases to be an inspector; and

(b) does not, as soon as practicable after so ceasing, return the identity card to the Chief Executive Officer.

he commits an offence.

Penalty - 1 penalty unit.

(3) It is a defence to a prosecution for an offence against subsection (2) that the identity card is lost or destroyed.

(4) An inspector must carry his or her identity card at all times when exercising powers or performing functions under this Part.

Powers to monitor compliance

99. - (1) An inspector may exercise any power set out in subsection (2) for any of the following purposes -

(a) to find out whether this Decree has been complied with; and

(b) to assess the correctness of information provided under this Decree.

(2)The powers are to -

(a) enter any place where persons are believed to be engaged as employees; and

(b) enter, at any reasonable time, any premises used or apparently used by a relevant person for business purposes and search for relevant documents or things;

(c) take photographs, make video or audio recordings or make sketches of the premises or any thing on the premises;

(d) question a relevant person, either alone or in the presence of another person;

(e) if -

(i) a relevant person has possession or control of; or

(ii) the inspector reasonably suspects that a relevant person has possession or control of a relevant document or thing -

(iii) the power to require (orally or in writing) the relevant person to produce it to the inspector as specified in the direction; and

(iv) the power to examine, and make copies of or take extracts from, it; and

(v) the power to require a relevant person or a person who apparently is a relevant person to give the inspector information about it;

(f) require a relevant person to attend at a time and place specified by the inspector in writing to be questioned; and

(g) require a person who makes a statement to the inspector to sign a declaration as to its truth.

(3)Subsections (2)(a) and (b) do not authorise an inspector to enter a place or premises used as a dwelling without the consent of the occupier of the place or premises.

(4)If an inspector questions a person under this section, the person must answer the question to the best of the person's knowledge, information and belief.

Penalty - 50 penalty units.

(5)Subject to this Decree, a person must not fail or refuse to comply with a requirement under this section.

Penalty - 50 penalty units.

Powers to investigate suspected offences against this Decree

100. - (1)If an inspector suspects on reasonable grounds that a person has committed an offence against this Decree, that or another inspector may exercise any power set out in subsection (2) for the purpose of investigating the suspected offence.

(2)The powers are -

(a) to enter and search any place or premises if an inspector suspects on reasonable grounds that a thing that may afford evidence of the offence may be found there;

(b) in conducting a search under subsection (2)(a) - the power to take photographs, make video or audio recordings or make sketches of the premises or any thing in the place or premises;

(c) if –

(i) a relevant person has possession or control of; or

(ii) an inspector suspects on reasonable grounds that a relevant person has possession or control of;

a thing that may afford evidence of the offence -

(iii) the power to require (orally or in writing) the relevant person to produce it to the inspector as specified in the direction; and

(iv) the power to examine, and make copies of or take extracts from, it; and

(d) to question a relevant person, either alone or in the presence of another person;

(e) to require a relevant person to attend at a time and place specified by the inspector in writing to be questioned;

(f) to require a person who makes a statement to the inspector to sign a declaration as to its truth.

(3)An inspector may not enter and search a place or premises under this section unless -

(a) the occupier of the place or premises consents; or

(b) the entry and search is authorised by a warrant issued by a magistrate.

(4)Subject to this Decree, a person must not fail or refuse to comply with a requirement under this section.

Penalty - 50 penalty units.

(5)If an inspector questions a person under this section at a time when the inspector, or another inspector, suspects or ought reasonably to have suspected that the person was involved in an offence against this Decree, the inspector must warn the person that the person does not have to answer the question, or do anything else in response to the question, but that that anything the person does say or do may be used in evidence.

(6)In a prosecution of a person for an offence against this Decree, evidence of anything that the person said or did when questioned in circumstances set out in subsection (5) is not admissible unless it is established that, before the question was asked, the warning required by that subsection was given. This subsection does not limit the grounds on which the evidence may be inadmissible.

Entry and search, etc

101. - (1) An inspector must, before entering a place or premises under sections 99 or 100, if the occupier of the place or premises asks, show the occupier his or her identity card.

(2)If a place or premises are being searched under section 99 or 100, the occupier of the premises is entitled to observe the search.

(3)Subsection (2) does not apply if the occupier impedes, or attempts to impede, the search.

(4)In this section -

"occupier", of a place or premises, means a person who is apparently at least 18 years old and is apparently the occupier of the place or premises.

Self-incrimination not a reasonable excuse, and legal professional privilege

102. - (1)If a person is required under this Decree to answer a question or produce a document or thing, the person is not excused from compliance on the ground that compliance will tend to incriminate the person or make the person liable to a penalty in a proceeding.

(2)However, if the person objects to complying on that ground, the information, document or other evidence that the person gives compliance with the requirement is not admissible against the person in a prosecution for an offence (except a prosecution for an offence of failing or refusing to comply with the requirement, or giving false or misleading information in purported compliance with the requirement).

(3)This Part does not affect the law relating to legal professional privilege, or like privileges.

Warrants

103. - (1)A magistrate is not to issue a warrant as mentioned in section 100(3)(b) excepapplication tion by an inspector.

(2)The application is to be in writing and accompanied by a statement in writing setting out information in support of the application. The magistmay require further informaformation.

(3)All information, oral or in writing, in support of the application must be given on oath or affirmation.

(4)The regulations may make provision for applications to be made by fax, or telephone, or in other ways.

(5)The magistrate is not to issue the warrant unless satisfied that there are reasonable grounds to suspect that a person has committed an offence against this Decree and that there is, in the place or premises specified in the application, a thing that will afford evidence of the offence.

(6)A warrant is to:

(a) name the inspector who applied for the warrant;

(b) specify the place or premises to be entered and searched;

(c) describe the offence in respect of which it is issued;

(e) specify the conditions, if any, to which the warrant is subject; and

(f) specify a day (not more than 7 days after its issue), on which it ceases to be in force.

(7)Another warrant may be issued before or after a warrant has ceased to be in force.

(8)Subject to any conditions in the warrant, a warrant may be executed at any time of the day or night.

(9)A warrant is taken to authorise the inspector named in the warrant, and any other inspector, to execute the warrant with such assistance as is necessary.

(10)In executing a warrant -

(a) the inspector may obtain such assistance; and

(b) the inspector, or a person who is assisting in executing the warrant may use such force against persons and things;

as is necessary and reasonable in the circumstances.

(11)If -

(a) a warrant in respect of a place or premises is being executed; and

(b) the occupier of the place or premises, or another person who apparently represents the occupier, is present;

the inspector must, on request by the occupier or other person, make a copy of the warrant available to the occupier or other person. The copy need not include the signature of the issuing magistrate or a court seal.

Division 2 - Departure Fiji

Departure prohibition orders

104. - (1)If -

(a) a person is liable to pay an amount as, or on account of, mandated contributions or additional contributions required to be paid by subsection 38(3);

(b) the amount is due and payable but has not been paid; and

(c) the Chief Executive Officer believes on reasonable grounds that it is desirable to prevent the person from departing from Fijanother country withoutRt—

(i) fully satisfying the liability; or

(ii) making arrangements satisfactory to the Board for the liability to be fully satisfied;

the Chief Executive Officer may, by written order, prohibit the departure of the person from Fiji.

(2)A departure prohibition order remains in force until revoked, or set aside by a court.

(3)A departure prohibition order in respect of a person does not prevent the deportation of the person under the Deportation Act (Cap. 90) or the deportation or removal of the person from Fiji under the Immigration Act 2003.

(4)The Chief Executive Officer must, as soon as practicable after making a departure prohibition order in respect of a person -

(a) send a copy of the order to the person at the address of the person last known to the Board; and

(b) give a copy of the order, and such information as the Chief Executive Officer considers is likely to help facilitate the identification of the person, to the Permanent Secretary or the Director of the Department of Immigration.

(5)The Chief Executive Officer may give a copy of the order and information described in subsection (4)(b) to any other department of the public service if, in the Chief Executive Officer's opinion, to do so will assist in giving effect to the order.