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Posts and Telecommunications Decree 1989

GOVERNMENT OF THE REPUBLIC OF FIJI

DECREE NO. 37

POSTS AND TELECOMMUNICATIONS DECREE, 1989

ARRANGEMENT OF SECTIONS

_______

PART I-INTRODUCTORY PROVISIONS

1. Short title and Commencement

PART II-TELECOMMUNICATION SERVICES

2. Interpretation
3. Abolition of the Government's exclusive privilege regarding telecommunications
4. General duties of the Minister
5. Licensing etc. of telecommunication systems
6. Exceptions to section 5
7. Power to licence systems
8. Public telecommunication systems
9. Telecommunications code
10. Modification of licence conditions
11. Register of licences and orders
12. Enforcement of licence conditions
13. Approval of contractors
14. Register of approved contractors
15. Approval etc. of apparatus
16. Register of approved apparatus, etc.
17. Information etc. to be marked on or to accompany telecommunication apparatus
18. Information, etc. to be given in advertisements
19. Delegation of functions under sections 13 and 15
20. Power to make test purchases
21. Compulsory purchase of land by carriers
22. Power to enter land for exploratory purposes

PART III-OTHER FUNCTIONS OF THE MINISTER

23. General functions
24. Publication of information and advice
25. Investigation of complaints
26. Power to give assistance in relation to certain proceeding
27. Power to require information etc.
28. Power to establish advisory councils
29. Grants and loans to promote rural telecommunications

PART IV-OFFENCES, ETC. RELATING TO TELECOMMUNICATIONS

30. Fraudulent use of telecommunication system.
31. Improper use of public telecommunication system
32. Modification etc. of messages
33. Interception and disclosure of messages etc.
34. Interrupting the business of public telecommunications carrier
35. Tampering with plant of telecommunication
36. Trespass and wilful obstruction of a telecommunications officer
37. Detaining or altering a message or revealing its contents
38. Impeding or delaying messages
39. Fraudulent retention of messages
40. Forgery of telegrams
41. Fraudulently transmitting messages
42. Assisting the working of an unlicensed telecommunication and radio-communication

PART V-PROVISIONS RELATING TO RADIO-COMMUNICATION

43. Licensing of radio-communication
44. Fees and charges for radio-communication licences
45. Approval of radio-communication apparatus, etc.
46. Powers of Minister as to radio-communication operators
47. Delegation of functions under sections 43, 45 and 46
48. Regulations as to radio-communication-general
49. Restriction on dealings in and custody of certain apparatus
50. Regulations as to radiation of electro-magnetic energy, etc.
51. Enforcement of electro-magnetic energy regulations as to use of apparatus
52. Enforcement of regulations as to sales, etc. by manufacturers and others
53. Regulations with respect to resistance to interference
54. Radio interference service
55. Misleading messages and interception and disclosure of messages
56. Deliberate interference
57. Territorial extent of preceding provisions
58. Onus of proof-radio-communication
59. Compounding of offences

PART VI-TELECOMMUNICATIONS-MISCELLANEOUS

60. Powers of Government in emergency
61. Power to require production of messages
62. Regulations-General
63. Entry and search of premises, etc.
64. Seizure of apparatus and other property used in committing certain offences under this Decree
65. Forfeiture on conviction
66. Disposal of apparatus and other properly seized by virtue of section
67. Admissibility of transcript message in judicial proceedings

PART VII-TRANSFER OF UNDERTAKING OF DEPARTMENT OF POSTS AND TELECOMMUNICATIONS

68. Interpretation
69. Vesting of property etc. of Department of Posts and Telecommunications in a company nominated by the Minister
70. Power of the Minister to override section 69 in case of difficulty or uncertainty
71. Initial Government holding in the Company
72. Conversion of certain loans vested in the Company
73. Government investment in securities of the Company
74. Exercise of the Minister's functions through nominees
75. Temporary restrictions on Company's borrowings etc.
76. Liability of Minister in respect of liabilities vesting in the Company
77. Application of law in relation to offer of shares or debentures of the Company

PART VIII-POSTAL SERVICES

78. Interpretation
79. Meaning of "in course of transmission by post" and "delivery to or from a post office"
80. General duties of the Minister
81. Appointment and duty of the postal authority
82. General ministerial control and supervision of the postal authority
83. Power of the Minister to direct the postal authority to do work for government departments and local authorities
84. Power to make grants and loans to the postal authority
85. Sole authority to convey etc. letters
86. Suspension of the sole authority
87. Minister's powers in regard to the postal authority's charges
88. General classes of acts not infringing the sole authority
89. No letters to be conveyed except by post
90. Savings for things done under a licence
91. Establishment of post offices
92. Postage stamps
93. Stamping machines
94. Rates of postage
95. Exemptions from postage
96. Liability for payment of postage
97. Power to withhold unstamped postal article
98. Post office mark evidence of refusal
99. Official mark to be evidence of postage
100. Return to sender
101. Registration of postal articles
102. Compulsory registration of certain postal articles
103. Insurance of postal articles
104. Parcels post
105. Money orders and money order regulations
106. Power of remitter to alter name or to recall money orders
107. Power to provide for issue of postal orders
108. Money order offices
109. Recovery of money paid to wrong persons
110. Exemptions from liability in respect of money orders and postal orders
111. Postage stamps may be used to denote stamp duty
112. Officers to make declaration
113. Notice of departure of vessels
114. Penalty for refusing to receive mail bag on board
115. Payment for conveyance of mail bags by non-contract vessels
116. No payment for conveyance of mail bags already paid for at port of departure
117. All mail bags and postal articles arriving by vessel to be delivered to post office by master
118. Declaration to be made by masters of vessels on arrival of vessels
119. Conveyance of mail bags by coasting vessels
120. Lockers to be provided by vessels and vehicles under contract
121. Transmission of certain articles prohibited
122. Transmission by post of anything indecent, etc., or articles bearing fictitious stamps prohibited
123. Postal authority may detain prohibited articles
124. Power to detain postal articles suspected to contain dutiable goods
125. Penalty for contravention of section 85
126. Penalty for contravention of sections 121 and 122
127. Fraudulently issuing money orders or postal orders
128. Money order or postal order to be deemed a valuable security
129. Unlawfully taking away or opening mail bag sent by vessels or vehicles employed under postal service
130. Receiver of stolen mail bag or postal article
131. Fraudulent detention of mail bag or postal article
132. Criminal diversion of letters from addressee
133. Opening or delaying postal articles
134. Delaying mail, etc.
135. Prohibition of placing injurious substances in or against post office letter boxes
136. Prohibition of affixing placards, notices, etc., on post office letter boxes, etc.
137. Prohibition of imitation of post office stamps, envelopes, forms and marks
138. Prohibition of fictitious stamps
139. Prohibition of false notice as to reception of letters
140. Obstruction of postal officers
141. Obstructing mail
142. Falsely inducing delivery of letters
143. Evidence of thing being postal article
144. Provision as to form of proceedings
145. Description of postal officers of the postal authority in legal proceedings
146. Penalty for being in unauthorised possession of mail bags, etc.
147. Article bearing a fraudulent stamp maybe withheld
148. Removing stamp from postal article
149. Penalty for unlawfully disclosing contents of postal article
150. Breach of regulations
151. Limitation of action against officer
152. Exemption from liability for loss, misdelivery, delay or damage
153. Penalty for offences not specially provided for
154. Regulations

PART IX-MISCELLANEOUS AND SUPPLEMENTAL

155. Disposal of fines
156. Directions in the interests of national security etc.
157. Exclusion of liability of the postal authority, the Company its officers and servants, in relation to posts and telecommunications
158. Endeavouring to procure the commission of any offence
159. Prohibitions and restrictions applying to lessees with respect to telecommunications
160. Contributions by local authorities towards provision of facilities
161. General restrictions on disclosure of information
162. Minister's report
163. Offences by bodies corporate
164. Orders
165. General interpretation
166. Alteration of public road
167. Amendments, transitional provisions and repeals
168. Exemption from requirements of notice

SCHEDULE 1-THE TELECOMMUNICATIONS CODE

1. Interpretation of code
2. Agreement required to confer right to execute works, etc.
3. Agreement required for obstructing access, etc.
4. Effect of rights and compensation
5. Power to dispense with the need for required agreement
6. Acquisition of rights in respect of apparatus already installed
7. Court to fix financial terms where agreement dispensed with
8. Notices and applications by potential subscribers
9. Road works
10. Power to fly lines
11. Tidal waters, etc.
12. Compensation for injurious affection to neighbouring land, etc.
13. Objections to overhead apparatus
14. Obligation to affix notices to overhead apparatus
15. Tree lopping
16. Power to require alteration of apparatus
17. Restriction on right to require the removal of apparatus
18. Abandonment of apparatus
19. Undertaker's works
20. Notices under code
21. Application to the State
22. Savings for and exclusion of certain remedies, etc.
23. Application of code to existing systems

SCHEDULE 2-DECLARATION

Form 1 (Section 112)
Form 2 (Section 118)

SCHEDULE 3-GENERAL TRANSITIONAL PROVISIONS AND SAVINGS

Part I Provisions and savings coming into force on the Appointed Day
Part II Provisions and Savings coming into force on the transfer date

SCHEDULE 4-REPEALS

Part I REPEALS COMING INTO FORCE ON THE APPOINTED DAY

The Telecommunications Act

Part II REPEALS COMING INTO FORCE ON THE TRANSFER DATE

The Post and Telecommunications Trust Account Act

The Post Office Act

_________

GOVERNMENT OF THE REPUBLIC OF FIJI DECREE NO. 37 OF 1989

_________

POSTS AND TELECOMMUNICATIONS DECREE, 1989
_________

A DECREE TO CONSOLIDATE AND AMEND THE LAW RELATING TO POSTS AND TELECOMMUNICATIONS

In exercise of the powers vested in me as President and Commander-in-Chief of the Republic of Fiji, and acting on the advice of the Prime Minister and Cabinet, I hereby make the following Decree-

PART I-INTRODUCTORY PROVISIONS

Short title and Commencement

1.-(1) This Decree may be cited as the Posts and Telecommunications Decree, 1989.

(2) The following provisions of this Decree shall come into force on the appointed day:-

sections 2 to 4;

Parts 11 to VI;

section 81;

section 110;

section 155 and 156;

section 157(4);

section 158 and 159;

section 161 to 166;

section 167 (in so far as it relates to other provisions of this Decree coming in effect on the appointed day);

Schedule 1 and 2;

Part I of Schedule 3; and

Part I of Schedule 4.

(3) The following provisions of this Decree shall come into force on the transfer date:-

Part VII;

Part VIII (other than section 81);

section 157 (other than subsection (4));

section 160;

Part II of Schedule 3; and

Part II of Schedule 4;

(4) This section shall come into force when this Decree is made.

PART II-TELECOMMUNICATION SERVICES

Interpretation

2.-(1) In this Decree, unless the context otherwise require-

(a) "the appointed day" has the meaning given by section 3 below;

(b) "broadcasting station" means a person transmitting by means of a radio-communication station sounds or visual images or both intended for general reception by the public and "broadcast receiving station" means a radio communication station capable of being used or adapted for the reception only of transmissions of sounds or visual images or both from broadcasting stations;

(c) "carrier" means a person designated to run a public telecommunication system;

(d) "modification" includes addition, alteration and omission and cognate expressions shall be construed accordingly;

(e) "public telecommunication system" has the meaning given by section 8 below;

(f) "radio-communication" means any telecommunication by means of Hertzian waves;

(g) "radio-communication station" means any telecommunication station capable of being used or being adapted for radio-communication, and "radio-communication apparatus" means any apparatus capable of being so used or so adapted and where the context so requires includes a radio-communication station;

(h) "telecommunication apparatus" means apparatus constructed or adapted for use-

(i) in transmitting or receiving anything falling within sub-paragraphs (i) to (iv) of paragraph (j) below which is to be or has been conveyed by means of a telecommunication system; or

(ii) in conveying, for the purposes of such a system, anything falling within those paragraphs;

(i) "telecommunication service" means any of the following -

(i) a service consisting in the conveyance by means of a telecommunication system of anything falling within sub-paragraphs (i) to (iv) of paragraph (j) below;

(ii) a service consisting in the installation, maintenance, adjustment, repair, alteration, moving, removal or replacement of apparatus which is or is to be connected to a telecommunication system; and

(iii) a directory information service, that is to say, a service consisting in the provision by means of a telecommunication system of directory information for the purposes of facilitating the use of a service falling within paragraph (a) above and provided by means of that system;

(j) "telecommunication system" means a system for the conveyance, through the agency of electric, magnetic, electro-magnetic, electro-chemical or electromechanical energy, or by means of fibre optic technology of-

(i) speech, music and other sounds;

(ii) visual images;

(iii) signals serving for the impartation (whether as between persons and persons, things and things or persons and things) of any matter otherwise than in the form of sounds or visual images; or

(iv) signals serving for the actuation or control of machinery or apparatus;

(k) "telecommunications operator" means any person licensed under section 7 below to run a telecommunication system within Fiji;

(l) "telecommunications officer" means any person employed either permanently or temporarily by a carrier in connection with a telecommunication system licensed under section 7 below, or by the Government in connection with the running of a telecommunications;

(m) "telecommunication line" means any wire, cable, tube, pipe or other similar thing which is designed or adapted for use in connection with the running of a telecommunication system, with any casing, coating, tube or pipe enclosing the same and any appliances and apparatus connected therein for the same; and includes any structure, post or other thing in, or, by or from which any telecommunication apparatus is or may be installed, supported, carried or suspended;

(n) "the transfer date" and "the Company" have the meaning given by section 69 below;

(o) "dealer in radio-communication apparatus" means any person carrying on the business of producing, manufacturing, repairing, selling, or distributing radio-communication apparatus;

(p) "message" means any communication sent, received, or made by telecommunication or given to a telecommunication officer to be sent by telecommunication;

(q) "post" when used in reference to telecommunications includes any pole, standard, stay, strut or other above-ground contrivance for installing, carrying, supporting or suspending a telecommunication line;

(r) "signal room" means any room or other enclosed area in which any part of the process of transmitting or receiving radio-communication takes place;

(s) "vessel" means a vessel of any description used in navigation;

(t) "commercial activities in connection with telecommunications" means any of the following that is to say, the provision of telecommunication services, the supply of telecommunication apparatus and the production or acquisition of such apparatus for supply;

(u) "the Minister" means the Minister responsible for Telecommunications; and

(v) "the President" means the Head of State of the Republic of Fiji.

(2) For the purposes of this Decree, except as provided in section 7(9) below, a telecommunication system is run by the person who ultimately controls and manages it; and, for the avoidance of doubt, where one person controls and manages a telecommunication system as agent for another person is that other person who runs the system.

(3) Subject to subsection (5) below, a telecommunication system is connected to another telecommunication system for the purposes of this Decree if it is being used or is installed for use in conveying anything falling within paragraph (j)(i) to (iv) of subsection (1) above which is to be or has been conveyed by means of that other system.

(4) Subject to subsection (5) below, apparatus is connected to a telecommunication system for the uses of this Decree if it is being used or is installed for use-

(a) in transmitting or receiving anything falling within paragraphs (j)(i) to (iv) of subsection (1) above which is to be or has been conveyed by means of that system; or

(b) in conveying, for the purposes of that system, anything falling within those paragraphs;

and references in this subsection to anything falling within those paragraphs shall include references to energy of any kind mentioned in that subsection.

(5) The connection to a telecommunication system of any other telecommunication system or any apparatus shall not be regarded as a connection for the purposes of this Decree if that other telecommunication system or that apparatus would not be so connected but for its connection to another communication system.

(6) In this section, except subsection (1) above, "convey" includes transmit, switch and receive and cognate expressions shall be construed accordingly.

Abolition of the Government's exclusive privilege regarding telecommunications

3.- As from such day as the Minister may by order appoint (in this Decree referred to as "the appointed day") the exclusive privilege of establishing, maintaining and working telecommunication within Fiji conferred on the Government by section 3 of the Telecommunications Act (Cap. 173) shall cease to exist.

General dude of the Minister

4.-(1) The Minister shall have a duty to exercise the functions assigned to him under Parts II, III and V of this Decree in the manner which he considers is best calculated to secure that there are provided throughout Fiji, save in so far as the provision thereof is impracticable or not reasonably practicable, such telecommunication services as satisfy all reasonable demands for them.

(2) Subject to subsection (1) above, the Minister shall have a duty to exercise the said functions in the manner which he considers is best calculated-

(a) to promote the interests of consumers, purchasers and other users in Fiji in respect of the prices charged for, and the quality and variety of, telecommunication services provided in Fiji;

(b) to maintain and promote effective competition between persons engaged in commercial activities connected with telecommunications in Fiji; and

(c) to promote efficiency and economy on the part of such persons.

(3) Subsections (1) and (2) above shall not apply in relation to anything done by the Minister in the interests of national security or relations with the government of a country or territory outside Fiji; and subsection (2) above shall not apply in relation to anything done in exercise of functions assigned by section 9(3) or (8), or 26 below.

Licensing etc. of telecommunication systems

5.-(1) Subject to the provisions of this section and section 6 below, a person who runs a telecommunication system within Fiji shall be guilty of an offence unless he is authorised to run the system by a licence granted under section 7 below.

(2) Subject to the provisions of this section, a telecommunications operator shall be guilty of an offence if-

(a) there is connected to the system-

(i) any other telecommunication system; or

(ii) any apparatus,

which is not authorised by his licence to be so connected; or

(b) there are provided by means of the system any telecommunication services which are not authorised by his licence to be so provided.

(3) A person guilty of an offence under this section shall be liable to a fine not exceeding ten thousand dollars.

(4) Where the commission by any person of an offence under this section is due to the act or default of some other person, that other person shall be guilty of the offence by virtue of this subsection whether or not proceedings are taken against the first-mentioned person.

(5) In any proceedings for an offence under this section it shall be a defence for the person charged prove that he took all reasonable steps and exercised all due diligence to avoid committing the offence.

(6) No proceedings shall be instituted in respect of an offence under this section except by or on behalf of the Minister.

Exceptions to section 5

6.-(1) Section 5(1) above is not contravened by the running by a broadcasting station of a telecommunication system in the case of which every conveyance made by it is either-

(a) a transmission, by radio-communication for general reception of sounds, visual images or such signals as are mentioned in section 2(1)(j)(iii) above; or

(b) a conveyance within a single set of premises of sounds, visual images or such, signals which are to be or have been so transmitted.

(2) Section 5(1) above is not contravened by-

(a) the running of a telecommunication system in the case of which the only agency involved in the conveyance of things thereby conveyed is light and the things thereby conveyed are so conveyed as to be capable of being received or perceived by the eye without assistance;

(b) the running by a person of a telecommunication system which is not connected to another telecommunication system (other than a public telecommunication system or such a telecommunication system as is mentioned in subsection (1) above) and in the case of which all the apparatus comprised therein is situated either-

(i) on a single set of premises in single occupation; or

(ii) in a vehicle, vessel, aircraft or hovercraft or in two or more vehicles, vessels, aircraft or hovercraft mechanically coupled together;

(c) the running of any telecommunication system on any foreign vessel or aircraft;

(d) the running by a person of a telecommunication system which is not connected to another telecommunication system and-

(i) which is comprised of a single repeater radio-communication station, a single fixed radio-communication station and two or more mobile radio-communication stations; and

(ii) all the stations and apparatus comprised therein required to be the subject of licences under section 43 below are so licensed and are being used in compliance with the terms, conditions and limitations of such licence.

Power to license systems

7.-(1) A licence may be granted by the Minister for the running of any such telecommunication system as is specified in the licence or is of a description so specified.

(2) A licence granted under this section shall be in writing and, unless previously revoked in accordance with any term in that behalf contained in the licence, shall continue in force for such period may be specified in or determined by or under the licence.

(3) A licence granted under this section may be granted either to all persons, to persons of a class or to a particular person and in the case of a licence granted to a particular person, may confer upon that person an exclusive privilege to provide any service specified, in any area or all areas of Fiji, and subject to such conditions, exceptions and other limitations as the Minister sees fit.

(4) A licence granted under this section may authorise-

(a) the connection to any telecommunication system to which the licence relates of-

(i) any other telecommunication system specified in the licence or of a description so specified; and

(ii) any apparatus so specified or of a description so specified; and

(b) the provision by means of any telecommunication system to which the licence relates to any telecommunication services specified in the licence or of a description so specified.

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

(a) such conditions (whether relating to the running of a telecommunication system to which the licence relates or otherwise) as appear to the Minister to be requisite or expedient having regard to the duties imposed on him by section 4 above;

(b) conditions requiring the rendering to the Minister of a payment on the grant of the licence or payments during the currency of the licence or both of such amount or amounts as may be determined by or under the licence; and

(c) conditions requiring any person who is authorised by the licence to run a telecommunication system to furnish to the Minister, in such manner and at such times as he may reasonably require, such documents, accounts, estimates, returns or other information as he may require for the purpose of exercising the functions assigned to him by or under this Part or Parts I or III of this Decree.

(6) Without prejudice to the generality of paragraph (a) of subsection (5) above, conditions included by virtue of that paragraph in a licence granted under this section to a particular person require that person-

(a) to comply with any direction given by the Minister as to such matters as are specified in the licence or are of a description so specified;

(b) except in so far as the Minister consents to his doing or not doing them, not to door to do such things as are specified in the licence or are of a description so specified; and

(c) to refer for determination by the Minister such questions arising under the licence as are specified in the licence or are of a description so specified.

(7) A licence granted under this section otherwise than to a particular person shall be published in such manner as the Minister considers appropriate for bringing it to the attention of the persons for whose benefit it will enure.

(8) Any sums received by the Minister under this section shall be paid into the Consolidated Fund.

(9) Where a licence granted under this section to a particular person includes a provision requiring that person to run a telecommunication system to which the licence relates through the agency of some other person, that other person, as well as the first mentioned person, shall be taken for the purpose of this section and the following provisions of this Decree to be authorised by that licence to run that system.

(10) Nothing in this section shall be taken to affect any provision of any other written law, whether or not in force at the commencement of this section, which regulates and provides for the licensing of any broadcasting service provided by a broadcasting station, and the provisions of this section shall be in addition to the requirements of that other law.

(11) Nothing in this section or in any licence granted under this section shall be taken to affect the provisions of section 43 below, and the provisions of this section shall be in addition to and not in substitution for or in diminution of the provisions of that section.

(12) Subsections (3) and (4) of section 8 below shall apply in respect of any licence granted under this section conferring upon the telecommunications operator an exclusive privilege in respect of any telecommunication service as if such licence were a licence to which section 8 below applies.

Public telecommunication systems

8.-(1) The Minister may by order designate as a public telecommunications system any telecommunication system the running of which is authorised by a licence to which this section applies; and any reference in this Decree to a public telecommunication system is a reference to a telecommunication system which is so designated and the running of which is so authorised.

(2) This section applies to any licence granted under section 7 above to a particular person which includes conditions requiring that person-

(a) to provide such telecommunication services as are specified in the licence or are of a description so specified;

(b) to connect to any telecommunication system to which the licence relates, or permit the connection to any such system of, such other telecommunication systems and such apparatus as are specified in the licence or are of a description so specified, either without charge or subject to reasonable charges or subject to charges to be determined in accordance with the method specified by the Minister in the licence (whichever the licence may specify);

(c) to permit the provision by means of any telecommunication system to which the licence relates of such services as are specified in the licence or are of a description so specified;

(d) not to show undue preference to, or to exercise undue discrimination against, particular persons or persons of any class or description (including, in particular, persons in rural areas) as respects any service provided, connection made or permission given in pursuance of such conditions made or permission given in pursuance of such conditions as are mentioned in the foregoing paragraphs (whether in respect of the charges or other terms or conditions applied or otherwise);

(e) to publish, in such manner and at such times as are specified in the licence, a notice specifying, or, if the method is not specified in the licence, specifying the method that is to be adopted for determining, the charges and other terms and conditions that are to be applicable to such services so provided, such connections so made and such permissions so given as are specified in the licence or are of a description so specified;

(f) not to make any charge or to give a rebate in respect of any service that is interrupted where such interruption exceeds 5 days from the time that the operator had knowledge of the interruption.

(3) Subject to section 168 below, before granting a licence to which this section applies, the Minister shall give notice-

(a) stating that he proposes to grant the licence and setting out its effect;

(b) stating the reasons why he proposes to grant the licence; and

(c) specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed licence may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(4) A notice under subsection (3) above shall be given by publication in the Fiji Republic Gazette and in such other manner as the Minister considers appropriate for bringing the matters to which the notice relates to the attention of persons likely to be affected by them.

(5) For the avoidance of doubt, it shall not be an undue discrimination within the meaning of subsection (2)(d) above to refuse to supply telecommunication services to any applicant who-

(a) subject to subsection (6) below, has failed to make payment of any amount which is due and owing to the person who would otherwise be required by the condition to provide the service, make the connection or give the permission;

(b) is indebted to the person who would otherwise be required by the condition to provide the service, make the connection or give the permission to an amount greater than two hundred dollars;

(c) is living in the same abode as such a debtor as is referred to in (a) or (b) above; or

(d) is not lawfully entitled to be or to remain in occupation of the premises where he is applying for the service to be provided, the connection to be made or the permission to be given.

(6) For the purposes of paragraph (a) of subsection (5) above only, an applicant shall not be regarded as having failed to make payment of any amount which is due and owing to the person who would otherwise be required by the condition to provide the service, make the connection or give the permission, if the amount is in respect of any credit transaction, until he has been served with a statement of account in respect of any amount owed and the period specified in the statement, not being less than seven days after service of the statement, in which payment of the amount should be made, or, if no such period is specified, a period of thirty days after service of the statement, has elapsed, and the applicant has failed to make such payment.

(7) For the purposes of subsection (6) above, a statement of account shall be deemed to have been served on an applicant if it is delivered to the last address at which he has advised the person who would otherwise be required to provide the service, make the connection or give the permission, to deliver statements of account, or, if no such advice has been given, to his last known address.

Telecommunication code

9.-(1) Subject to the following provisions of this section, the code (to be known as "the telecommunications code") which is contained in Schedule 1 to this Decree shall have effect where it is applied to a particular person by a licence granted by the Minister under section 7 above authorising that person to run a telecommunication system.

(2) The telecommunications code shall not be applied to a person authorised by a licence under section 7 above to run a telecommunication system-

(a) unless that licence is a licence to which section 8 above applies; or

(b) unless it appears to the Minister-

(i) that the running of the system will benefit the public; and

(ii) that it is not practicable for the system to be run without the application of that code to that person.

(3) Where the telecommunication code is applied to any person by a licence under section 7 above it shall have effect subject to such exceptions and conditions as may be included in the licence for the purpose of qualifying the rights exercisable by that person by virtue of the code.

(4) Without prejudice to the generality of subsection (3) above, the exceptions and conditions contained in the licence shall include such exceptions and conditions as appear to the Minister to be requisite or expedient for the purpose of securing-

(a) that the physical environment is protected and, in particular, that the natural beauty and amenity of the country is conserved;

(b) that there is no greater damage to streets or interference with traffic than is reasonably necessary;

(c) that funds are available for meeting any liabilities which may arise from the exercise of rights conferred by or in accordance with the code,

and any condition falling within this subsection may impose on the person to whom the code is applied a requirement to comply with directions given in a manner specified in the condition and by person so specified or of a description so specified.

(5) A licence under section 7 above which applies the telecommunications code to any person in relation to any part or locality of Fiji shall include a condition requiring that person to cause copies of-

(a) the exceptions and conditions subject to which the telecommunications code has effect as so applied; and

(b) every direction given in a manner specified in any such condition by a person so specified or of a description so specified,

to be open for inspection by members of the public free of charge at such premises in that part or locality as are specified in the licence or are of a description so specified.

(6) Subject to section 168 below, before granting under section 7 above a licence which applies the communications code to a particular person in relation to any part or locality of Fiji the Minister shall publish a notice-

(a) stating that he proposes to apply the code to that person in relation to that part or locality and setting out the effect of the exceptions and conditions subject to which he proposes that the code should have effect as so applied;

(b) stating the reasons why he proposes to apply the code to that person in relation to that part or locality and why he proposes that the code as so applied should have effect subject to those exceptions and conditions; and

(c) specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed application of the code to that person in relation to that part of locality and with respect to the proposed exceptions and conditions may be made,

and shall reconsider his proposals in the light of any representations or objections which are duly made and not withdrawn.

(7) If the Minister, on reconsidering in pursuance of subsection (6) above any proposals specified notice under that subsection, grants a licence under section 7 above applying the telecommunications code to any person in relation to any part or locality of Fiji, he shall on granting that licence publish a further notice-

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

(b) stating the reasons why the code has been applied to that person in relation to that part or locality and why the code as so applied has effect subject to those exceptions and conditions.

(8) Where the Minister has granted a licence under section 7 above which applies the telecommunication code to a particular person in relation to any part or locality of Fiji, he may-

(a) with the consent of that person; or

(b) if it appears to him requisite or expedient to do so for the purpose mentioned in subsection (4) above,

modify the exceptions and conditions subject to which the code has effect as so applied.

(9) Before modifying the exceptions and conditions subject to which the telecommunications code has effect as applied to any person in relation to any part or locality of Fiji by a licence granted under section 7 above, the Minister shall publish a notice-

(a) stating that he proposes to make the modifications and setting out their effect;

(b) stating the reasons why he proposes to make the modifications; and

(c) specifying the time (not being less than 28 days from the date of publication of this notice) within which representations or objections with respect to the proposed modifications may be made, and shall reconsider his proposals in the light of any representations or objections which are duly made and not withdrawn.

(10) If the Minister, on reconsidering in pursuance of subsection (9) above any proposals specified in a notice under that subsection, modifies the exceptions and conditions subject to which the telecommunications code has effect as applied to any person in relation to any part or locality of Fiji by a licence granted under section 7 above, he shall on making the modification publish a further notice-

(a) stating that the modifications have been made and setting out their effect; and

(b) stating the reasons why the modifications have been made.

(11) A notice under this section shall be published in the Fiji Republic Gazette and in such other manner as the Minister considers appropriate for bringing the matters to which the notice relates to the attention of persons likely to be affected by them.

Modification of licence conditions

10.-(1) Subject to the following provisions of this section, the Minister may modify the conditions of a licence granted under section 7 above.

(2) Before making modifications under this section, the Minister shall give notice-

(a) stating that he proposes to make the modifications and setting out the effects;

(b) stating the reasons why he proposes to make the modifications; and

(c) specifying the time (not being less than 28 days from the date of publications of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(3) A notice under subsection (2) above shall be given by publication in such manner as the Minister considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them, in case of a licence granted to a particular person, by sending a copy of the notice to that person, and in addition, in the case of a licence to which section 8 above applies by publications in the Fiji Republic Gazette.

(4) Subject to subsection (5) below, in the ease of a licence granted to a particular person the Minister shall not make the modifications except with the consent of that person and, in the case of a licence granted to all persons or to person of a class, the Minister shall not make the modifications unless either-

(a) no representations or objections are duly made by persons authorised by that licence to run a telecommunication system; or

(b) any representations or objection duly made by such persons or withdrawn.

(5) Where a notice given by the Minister under subsection (2) above specifies that he proposes to make modifications to remedy or prevent a matter or matters which operate or are expected to operate against the public interest and which relates or relate to the provision of telecommunication services or the supply of telecommunication apparatus by a person or persons of a class authorised by a licence under section 7 above to run a telecommunication system; then notwithstanding that in the case of a particular person, that person does not consent or that representations or objections made by persons authorised by that licence to run telecommunications systems are not withdrawn, the Minister may, after considering such representations and objections, if he is satisfied that the matter or matters specified operate or will operate against the public interest and can be remedied or prevented by modifications proposed, modify the conditions of a licence.

(6) The Minister shall not modify the conditions of a licence under subsection (4) or (5) above if it appears to him to be requisite or expedient not to do so in the interests of national security or relations with the government of a country or territory outside Fiji.

(7) Where the Minister modifies the conditions of a licence under subsection (5) above, he shall within 14 days thereafter publish in accordance with subsection (8) below a report setting out-

(a) his conclusions in respect the matter or matters specified in his notice referred to in subsection (5) above together with an account of his reasons for those conclusions as is in his opinion is expedient for facilitating proper understanding of those conclusions;

(b) the effects adverse to the public interest which that matter or those matters have or were expected to have; and

(c) how those effects are to be remedied or prevented by the modifications made.

(8) A copy of a report under subsection (7) above-

(a) subject to subsection (9) below, shall be published by the Minister in such manner as he considers appropriate for bringing the report to the attention of persons likely to be affected by it; and

(b). shall be sent by the Minister, in the case of a licence granted to a particular person, to that person.

(9) If it appears to the Minister that the publication of any matter in such a report would be against the public interest or the commercial interests of any person, he may exclude such matter from the report as published under subsection .(8) above.

(10) Nothing in this section shall be taken to prevent the Minister from specifying in any licence how any condition or conditions may be modified by him under the provisions of the licence, and from making any modification accordingly.

Register of licences and orders

11.-(1) The Minister shall keep a register of licences granted under section 7 above and notifications issued under section 12 below at such premises and in such form as he may determine.

(2) Subject to any decision made under subsection (3) below, the Minister shall cause to be entered in the register the provisions of-

(a) every licence granted under section 7 above and every modification or revocation of and every direction or consent given or determination made in respect of or under, such a licence; and

(b) every determination made by the Minister that he is satisfied that a contravention or apprehended contravention of a licence is of a trivial nature.

(3) If it appears to the Minister that the entry of any provision in the register would be against the public interest or the commercial interest of any person, he may decide not to enter that provision in the register.

(4) The register shall be open to public inspection during such hours and subject to payment of such fee, if any, as may be prescribed by order made by the Minister.

(5) Any person may, on payment of such fee as maybe prescribed by an order so made, require the Minister to supply to him a copy of or extract from any part of the register, certified by the Minister to be a true copy or extract.

(6) Any sums received by the Minister under this section shall be paid into the Consolidated Fund.

(7) The functions conferred on the Minister by subsection (5) above may be exercised by any Public officer appointed for such purpose.

Enforcement of licence conditions

12.-(1) Where the Minister-

(a) is satisfied that a telecommunications operator is contravening, or has contravened or is likely again to contravene any of the conditions of his licence and that the contravention or apprehended contravention is not of a trivial nature; and

(b) notifies the telecommunications operator in writing that he is so satisfied, specifying the condition and the acts or omissions which, in his opinion, constitute or would constitute contraventions of it;

(c) requires the telecommunications operator to remedy the contravention in such period (not being less than 28 days) as the Minister may specify in the notification,

then, if the telecommunications operator fails to remedy the contravention within that period or show good reason why he should not do so, his failure shall be deemed to be a breach of a duty owed to any person who may be affected by his failure and shall be treated as if it were a tort committed against, and shall be actionable at the suit of, any person who is caused loss or damage by such failure and he shall be liable to pay to such person such amount of compensation therefor as the court may determine.

(2) The said liability shall not be capable of being removed, reduced or in anyway modified by any agreement entered into between the telecommunications operator and the person affected, or any person acting on behalf of either of them, before the expiration of the period so specified.

(3) In any proceedings brought against any person in pursuance of subsection (1) above, it shall be a defence for him to prove that he took all reasonable steps and used all due diligence to remedy the contravention within the period specified.

(4) Where a duty is deemed by subsection (1) above to be owed to any person, any act which by inducing a telecommunications operator to fail to remedy the contravention in the time specified or interfering with the remedying of the contravention in the time specified, causes a person to sustain loss or damage and which is done wholly or partly for the purposes of achieving the result, shall be actionable at the suit or instance of that person in the same way as a failure to remedy a contravention is actionable under subsection (1) above.

(5) Without prejudice to any right which any person may have by virtue of subsection (1) above to bring proceedings in respect of any failure to comply with a notice issued under subsection (1) above, compliance with any such notice shall be enforceable by civil proceedings by the Minister for an injunction or any other appropriate relief.

(6) Wherein any civil proceedings brought against a carrier by the Minister under subsection (5) above, the court is of opinion that there has been a contravention of any of the conditions of the licence, which contravention is not of a trivial nature and that there is or was no good reason for the carrier not remedying the contravention in the manner and within the period specified in the notification, the court shall, on the application of the Minister, in addition to any injunction or other appropriate relief it may grant, require the carrier to pay to the Minister a penalty not exceeding one hundred thousand dollars.

(7) In this section-

"contravention" in relation to any condition of a licence, includes any failure to comply with that condition and

"contravene" shall be construed accordingly.

(8) References in this section to conditions of a licence do not include references to conditions relating to the application of the telecommunications code.

Approval of contractors

13.-(1) Where licences granted under section 7 above include provisions which are framed by reference to the carrying out of relevant operations by persons for the time being approved under this section then, for the purposes of those provisions, persons may be approved under this section in relation to such operations by the Minister.

(2) A person applying for an approval under this section maybe required by the Minister to comply with such requirements as the Minister may think appropriate; and those requirements may include a requirement to satisfy some other person with respect to any matter.

(3) An approval under this section may apply either to a particular person or to persons of a description specified in the approval, and may so apply either in relation to particular relevant operations or in relation to relevant operations of a description so specified.

(4) An approval under this section may specify conditions which must be complied with if the approval is to apply, for any purposes specified in the approval, to any person who is so specified or is of a description so specified; and any such condition may impose on the person to whom the approval is given a requirement from time to time to satisfy any person specified by the Minister with respect to any matter.

(5) Nothing in this section shall preclude a person (not being the Minister) by whom any matter falls to be determined for the purposes of any requirement imposed in pursuance of subsection (2) or (4) above from charging any fee in respect of the carrying out of any test or other assessment made by him.

(6) Any power conferred by this section to give an approval includes power to vary or withdraw an approval given in exercise of that power.

(7) The Minister may be [sic] order provide for the charging of fees in respect of the exercise of any functions conferred by or under this section.

(8) Any sums received by the Minister under this section shall be paid into the Consolidated Fund.

(9) In this section "relevant operations" means the installations, maintenance, adjustment, repair, alteration, moving, removal or replacement of apparatus which is or is to be connected to any telecommunication system to which a licence under section 7 above relates.

Register of approved contractors

14.-(1) The Minister shall keep a register of approvals given under section 13 above at such premises and in such form as he may determine.

(2) The Minister shall cause particulars of every such approval, and of every variation or withdrawal of such an approval, to be entered in the register.

(3) Subsections (4) to (7) of section 11 above shall apply for the purposes of this section as they apply for the purposes of that section.

Approval etc. of apparatus

15.-(1) Where licences granted under section 7 above include provisions which are framed by reference to apparatus for the time being approved under this section for connection to telecommunication systems to which the licences relate, then, for the purposes of those provisions, apparatus any be approved for connection to those systems by the Minister.

(2) A person applying for an approval under this section may be required by the Minister to comply with such requirements as the Minister may think appropriate; and those requirements may include a requirement to satisfy some other person with respect to any matter.

(3) An approval under this section may apply either to particular apparatus or to any apparatus of a description specified in the approval, an [sic] may so apply either for the purposes of a particular telecommunication system or for the purposes of any telecommunication system of a description so specified.

(4) An approval under his [sic] section may specify conditions which must be complied with if the approval is to apply, for any purposes specified in the approval, to any apparatus which is so specified or is of a description so specified, and any such condition may impose on the person to whom the approval is given a requirement from time to time to satisfy any person with respect to any matter.

(6) Standards to which apparatus of a description specified in the designation must conform if it is to be approved for connection to a telecommunication system so specified or of a description so specified maybe designated by the Minister; and a standard so designated may apply subject to such exceptions as may be determined by or under the designation.

(7) A designation under this section may specify conditions which must be complied with if any apparatus of a description specified in the designation is to be regarded, for any purposes so specified, as conforming to the standard to which the designation relates.

(8) Before designating a standard under this section, the Minister shall give notice-

(a) stating that he proposes to make the designations and setting out its effect;

(b) stating any conditions which he proposes to specify in the designation; and

(c) specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed designation may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(9) A notice under subsection (8) above shall be given by sending a copy of the notice to the person running the system and such other persons (if any) as the Minister considers appropriate.

(10) Any power conferred by this section to give an approval or designate a standard includes power to vary or withdraw an approval given or designation made in the exercise of that power.

(11) The Minister may by order provide for the charging of fees in respect of the exercise of any functions conferred by or under this section.

(12) Any sums received by the Minister under this section shall be paid into the Consolidated Fund.

(13) Any person who connects to any telecommunications system referred to subsection (1) above, any apparatus which is of, or is similar to, a type which under the provisions of the licence in respect a t telecommunication system, must be approved under this section but is not so approved, shall be guilty of an offence and shall be liable upon conviction in the case of apparatus being a telephone to a fine not exceeding three hundred dollars and in the case of all other apparatus, not being a telephone, to a fine not exceeding three thousand dollars:

(14) For the purposes of this section, "apparatus" includes a meter or any other system or apparatus constructed or adapted for use in ascertaining the extent of telecommunication services provided by means of a telecommunication system.

Register of approved apparatus, etc.

16.-(1) The Minister shall keep a register of approvals given and designations made under section 15 above at such premises and in such form as he may determine.

(2) Subject to subsection (3) below, the Minister shall cause particulars of every such approval or designation, and of every variation or withdrawal of such an approval or designation, to be entered in the register.

(3) Subsections (3) to (7) of section 11 above shall apply for the purposes of this section as they apply or the purposes of that section.

Information etc. to be marked on or to accompany telecommunication apparatus

17.-(1) Where it appears to the Minister expedient that any description of telecommunications apparatus should be marked with or accompanied by any information or instruction relating to the apparatus or its connection or use, the Minister may by order impose requirements for securing that apparatus of that description is so marked or accompanied, and regulate or prohibit the supply of any such apparatus with respect to which the requirements are not complied with and the requirements may extend to the form and manner in which the information or instruction is to be given.

(2) Where an order under this section is in force with respect to telecommunication apparatus of any description, any person who, in the course of any trade or business, supplies or offers to supply telecommunication apparatus of that description in contravention of the order shall, subject to sub-section (3) below be guilty of an offence and liable to a fine not exceeding three thousand dollars.

(3) Subsection (4) to (6) of section 5 above shall apply for the purposes of this section as they apply for the purposes of that section.

(4) An order under this section may, in the case of telecommunication apparatus supplied in circumstances where the information or instruction required by the order would not be conveyed until after delivery, require the whole or part thereof to be also displayed near the apparatus.

(5) For the purposes of this section a person exposing telecommunication apparatus for supply or having telecommunication apparatus in his possession for supply shall be deemed to offer to supply it.

Information, etc. to be given in advertisements

18.-(1) Where it appears to the Minister expedient that any description of advertisements of telecommunication apparatus should contain or refer to any information relating to the apparatus or its connection or use, the Minister may by order impose requirements as to the inclusion of that information, or an indication of the means by which it may be obtained, in advertisements of that description.

(2) Where an advertisement of any telecommunication apparatus to be supplied in the course of any trade or business fails to comply with any requirement imposed under this section, any person who publishes the advertisement shall, subject to subsections (3) and (4) below, be guilty of an offence and liable to a fine not exceeding one thousand dollars.

(3) Subsections (4) to (6) of section 5 above shall apply for the purposes of this section as they apply for the purposes of that section.

(4) In any proceedings for an offence under this section it shall be a defence for the person charged to prove that he is a person whose business it is to publish or arrange for the publication of advertisements and that he received the advertisement for publication in the ordinary course of business and did not know and had no reason to suspect that its publication would amount to an offence under this section.

(5) An order under this section may specify the form and manner in which any information or indication required by the order is to be included in advertisements of any description.

(6) In this section "advertisement" includes a catalogue, a circular and a price list.

Delegation of functions under sections 13 and 15

19.-(1) The functions conferred on the Minister by sections 13 and 15 above (other than the powers to make orders) shall be exercisable by any person appointed by the Minister for the purpose to such extent and subject to such conditions as may be specified in the appointment; and an appointment under this section may authorise the person appointed to retain, any fees received by him.

(2) Before appointing any person under this section, the Minister shall consult with the persons running the telecommunication systems concerned, or with such organisations as appear to the Minister to be representative of those persons.

Power to make test purchases

20.-(1) -The-Minister or the trade measurement authority shall have power to purchase telecommunication apparatus, and to authorise any of his officers to purchase telecommunication apparatus on his behalf, for the purpose of ascertaining whether sections 17 and 18 above and orders made under those sections (in this section referred to as "the relevant provisions") are being complied with.

(2) The Minister and the trade measurement authority shall have power to enforce the relevant provisions.

(3) For the purposes of this section, "the trade measurement authority" means, unless the Minister by order otherwise specifies, the Chief Inspector of Trade Measurement.

Compulsory purchase of land by carriers

21.-(1) Subject to subsection (2) below, the Minister may authorise a carrier to acquire compulsorily any land in Fiji which is required by the carrier for, or in connection with, the establishment or running of the carrier's telecommunication system or as to which it can reasonably be foreseen that it will be so required; and the State Acquisition of Lands Act (Cap. 135) shall apply to any compulsory acquisition under this section and, for the purposes of that Act, the purposes for which the carrier requires the land shall be treated as being public purposes.

(2) No order shall be made authorising a compulsory acquisition by a carrier except with the consent of the Minister; and such consent shall be given only where the Minister is satisfied that the land cannot be acquired by agreement

(3) The power of acquiring land compulsorily under this section includes power to acquire any other right over land by the creation of a new right.

(4) Where a carrier has acquired any land under this section, he shall not dispose of that land or of any interest or right in or over it except with the consent of the Minister.

Power to enter land for exploratory purposes

22.-(1) A person nominated by a carrier and duly authorised in writing by the Minister may, at any reasonable time, in connection with any works authorised by or under this Decree enter upon and survey and take levels of any State, native or private land or any part thereof other than any land covered by buildings or used as a garden or pleasure ground, for the purpose of ascertaining whether the land would be suitable for use or by the carrier for, or in connection with, the establishment or running of the carrier's system:

Provided that, before the exercise of the power conferred by the provisions of this section, notice of the intention of the carrier, shall be served on the owner or owners, the occupier or occupiers and any other interested party at least 28 clear days before the exercise of such power.

(2) In the exercise of the powers given by the provisions of this section, the carrier, shall not be deemed to acquire any right other than that of user only in or over the soil of any land through, over or under which, the carrier causes to be carried out the survey and the taking of levels and should in the exercise of the power conferred by this section, any damage be caused to land or to chattels, the carrier shall give to any person, who has an interest in such land or chattels suffering loss thereby, such reasonable compensation as may be agreed or in the case of difference as may be determined by a court of competent jurisdiction.

(3) For the purposes of subsection (1), a notice shall be taken to have been served on the owners of any native land if it has been served on the person who is registered as the head of the mataqali, or other Fijian land owning unit, which is registered as being the native owner of such land.

PART III-OTHER FUNCTIONS OF THE MINISTER

General functions

23.-(1) It shall be the duty of the Minister, so far as it appears to him practicable, from time to time to keep under review the carrying on both within and outside Fiji of activities connected with telecommunications.

(2) It shall also be the duty of the Minister, so far as it appears to him practicable, from time to time to collect information with respect to commercial activities connected with telecommunications carried on in Fiji and the persons by whom they are carried on, with a view to his becoming aware of and ascertaining the circumstances relating to, matters with respect to which his functions are exercisable.

Publication of information and advice

24.-(1) The Minister may arrange for the publication, in such form and in such manner as he may consider appropriate, of such information and advice as it may appear to him to be expedient to give to consumers, purchasers and other users of telecommunication services or telecommunication apparatus in Fiji.

(2) In arranging for the publication of any such information or advice, the Minister shall have regard to the need for excluding, so far as that is practicable-

(a) any matter which relates to the private affairs of an individual, where the publication of that matter would or might, in the opinion of the Minister, seriously and prejudicially affect the interest of that individual; and

(b) any matter which relates specifically to the affairs of a particular body of persons, whether corporate or unincorporated, where publication of that matter would or might, in the opinion of the Minister, seriously and prejudicially affect the interest of that body.

(3) Without prejudice to the exercise of his powers under subsection (1) of this section, it shall be the duty of the Minister to encourage relevant associations to prepare, and to disseminate to their members, codes of practice for guidance in safeguarding and promoting the interests of consumers, purchasers and other users of telecommunication services or telecommunication apparatus in Fiji.

(4) In this section "relevant association" means any association (whether incorporated or not) whose membership consists wholly or mainly of persons engaged in the provision of telecommunication services apparatus or the supply of telecommunication apparatus or of persons employed by or representing persons so engaged and whose objects or activities include the promotion of the interests of persons so engaged.

Investigation of complaints

25.-(1) It shall be the duty of the Minister to consider any matter which-

(a) relates to telecommunication services provided or telecommunication apparatus supplied in Fiji; and

(b) is the subject of a representation (other than one appearing to the Minister to be frivolous) made to the Minister by or on behalf of a person appearing to the Minister to have an interest in that matter.

(2) Where any matter considered by the Minister under subsection (1) above is one in respect of which any of his functions is exercisable, the Minister shall, if he is required to do so or if he thinks fit, exercise that function with respect to that matter.

Power to give assistance in relation to certain proceedings

26.-(1) Where, in relation to any proceedings or prospective proceedings concerning the telecommunications code, any actual or prospective party to the proceedings (other than a carrier) applies to the Minister for assistance under this section, the Minister may grant the application if he thinks fit to do so-

(a) .on the ground that the case raises a question of principle; or

(b) on the ground that it is unreasonable, having regard to the complexity of the case or to any other matter, to expect the applicant to deal with the case without any assistance under this section; or

(c) by reason of any other special consideration.

(2) Assistance by the Minister under this section may include-

(a) giving advice;

(b) procuring or attempting to procure the settlement of the matter in dispute;

(c) arranging for the giving of advice or assistance by the Attorney-General;

(d) arranging for representation by the Attorney-General including such assistance as is usually given by a barrister and solicitor in the steps preliminary or incidental to any proceedings, or in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings;

(e) any other form of assistance which the Minister may consider appropriate, but paragraph (d) above shall not affect the law and practice regulating the descriptions of persons who may appear in, conduct, defend and address the court in, any proceedings.

(3) In so far as expenses are incurred by the Minister in providing the applicant with assistance under this section, the recovery of those expenses (as taxed or assessed in such manner as may be prescribed by rules of court) shall constitute a first charge for the benefit of the Minister-

(a) on any costs or expenses which (whether by virtue of a judgment or order of a court or an agreement or otherwise) are payable to the applicant by any other person in respect of the matter in connection with which the assistance is given; and

(b) so far as relates to any costs or expenses, on his rights under any compromise or settlement arrived at in connection with that matter to avoid or bring to an end any proceedings.

(4) Any expenses incurred by the Minister in providing assistance under this section shall be paid cut of public funds; and any sums received by the Minister by virtue of any charge conferred by subsection (3) above shall be paid into the Consolidated Fund.

Power to require information etc.

27.-(1) The Minister may, for any relevant purpose, by notice in writing signed by him-

(a) require any person to produce, at a time and place specified in the notice, to the Minister or to any person appointed by him for the purpose, any documents which are specified or described in the notice and are in that person's custody or under his control; or

(b) require any person carrying on any business to keep such records and furnish to the Minister copies of such records and such estimates, returns or other information as may be specified or described in the notice, and specify the time, the manner and the form in which any such estimates, returns or information are to be furnished,

but no person shall be compelled for any such purpose to produce any documents which he could not be compelled to produce in civil proceedings before the court or, in complying with any requirements for the furnishing of information, to give any information which he could not be compelled to give in evidence in such proceedings.

(2) A person who refuses or, without reasonable excuse, fails to do anything duly required of him by a notice under subsection (1) above shall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding one year or to a fine not exceeding five thousand dollars or to both such imprisonment and fine.

(3) A person who-

(a) intentionally alters, suppresses or destroys any document which he has been required by any such notice to produce; or

(b) in furnishing any estimate, return or other information required of him under any such notice, makes any statement which he knows to be false in a material particular, or recklessly makes any statement which is false in a material particular,

shall be guilty of an offence.

(4) A person guilty of an offence under subsection (3) above shall be liable to such penalties as are specified in subsection (2) above.

(5) If a person makes default in complying with a notice under subsection (1) of this section, the court may, on the application of the Minister, make such order as the court thinks fit for requiring the default to be made good; and any such order may provide that all the costs or expenses of an incidental to the application shall be borne by the person in default or by any officers of a body corporate or other association who are responsible for its default.

(6) In this section-

"relevant purpose" means any purpose connected with-

(a) the investigation of any offence under section 5, 17 or 18 above or any proceedings for any such offence; or

(b) the exercise of the Minister's functions under section 12 or 25 above.

Power to establish advisory councils

28.-(1) The Minister shall, as soon as practicable after the appointed day, establish advisory councils for matters affecting telecommunications in Fiji or any part thereof; and each advisory council so established shall consist of such members as he may from time to time appoint.

(2) In establishing a council under subsection (1) above, the Minister shall have regard to the desirability of having members who are familiar with the special requirements and circumstances of the part of Fiji concerned (including, in particular, the special requirements and circumstances of consumers and purchasers and other users in that part of telecommunication services and telecommunication apparatus).

(3) It shall be the duty of an advisory council established under this section to advise the Minister on any matter-

(a) in respect of which any of the Minister's functions in respect of telecommunications is exercisable; and

(b) which is referred to it by the Minister or is a matter on which it considers it should offer its advice.

(4) Each of the advisory councils established under this section shall, as soon as practicable after the end of the year in which the transfer date occurs and of each subsequent calendar year, make to the Minister a report on its activities during that year.

Grants and loans to promote rural telecommunications

29. The Minister responsible for finance may, at the request of the Minister, make grants or loans-

(a) to carriers for the purposes of establishing, developing, working and maintaining any telecommunications system in a rural area or rural areas; or

(b) for defraying or contributing towards any expenses or losses incurred by a carrier in respect of such matters.

PART IV-OFFENCES, ETC. RELATING TO TELECOMMUNICATIONS

Fraudulent use of telecommunication system

30. A person who dishonestly obtains a service provided by means of a telecommunication system licensed under section 7 above with intent to avoid payment of any charge applicable to the provision of that service shall be guilty of an offence and liable to imprisonment for a term not exceeding one year or to a fine not exceeding one thousand dollars or to both such imprisonment and fine.

Improper use of public telecommunication system

31. A person who-

(a) sends, by means of a public telecommunication system, a message or other matter that is grossly offensive or of an indecent, obscene or menacing character;

(b) sends by those means, for the purpose of causing annoyance, inconvenience or needless anxiety to another, a message that he knows to be false; or

(c) persistently makes use for either such purpose of a public telecommunication system, shall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding three months or to a fine not exceeding five hundred dollars or to both such imprisonment and fine.

Modification etc. of messages

32.-(1) A person engaged in the running of a public telecommunication system who otherwise than in the course of his duty intentionally modifies or interferes with the contents of a message sent by means of that system shall be guilty of an offence.

(2) A person guilty of an offence under subsection (1) above shall be liable to imprisonment for a term not exceeding three years or to a fine not exceeding three thousand dollars or to both such imprisonment and fine.

Interception and disclosure of messages etc.

33.-(1) A person engaged in the running of a public telecommunication system who otherwise than in the course of his duty-

(a) intentionally intercepts a message sent by means of that system; or

(b) where a message so sent has been intercepted, intentionally discloses to any person the contents of that message;

shall be guilty of an offence.

(2) a person engaged in the running of a public telecommunication system who otherwise than in the course of his duty intentionally discloses to any person the contents of any statement of account specifying the telecommunication services provided for any other person by means of that system shall be guilty of an offence.

(3) Subsection (1) above does not apply to anything done in obedience to a warrant under the hand of the President and paragraph (b) to that subsection and subsection (2) above do not apply to any disclosure in connection with the investigation of any criminal offence or for the purposes of any criminal proceedings.

(4) A person guilty of an offence under subsection (1) and (2) above shall be liable to imprisonment for a term not exceeding three years or to a fine not exceeding three thousand dollars or to both such imprisonment and fine.

Interrupting the business of public telecommunications carrier

34. Any person engaged in the telecommunications business of a carrier may require any person who is intentionally obstructing such telecommunications business to leave premises used for the purposes of that business and, if that person who is so required refuses or fails to comply with the requirement, he shall be guilty of an offence and liable on conviction to a fine not exceeding one thousand dollars and may be removed by any police officer on demand.

Tampering with plant of telecommunication

35. Any person who, intending-

(a) to prevent or obstruct the transmission or delivery of any message; or

(b) to intercept or to acquaint himself with the contents of any message; or

(c) to commit mischief,

damages, removes, tampers with, touches or in any way whatsoever interferes with any telecommunication apparatus or telecommunication line, post or other thing whatsoever, being part of or used in or about any telecommunication system or in the use thereof; shall be liable on conviction to imprisonment for a term not exceeding three years or to a fine not exceeding three thousand dollars or to both such imprisonment and fine.

Trespass and wilful obstruction of a telecommunications officer

36.-(1) Any person who-

(a) without permission of the telecommunications officer in charge enter the signal room of a telecommunication office of the Government or of a telecommunications operator;

(b) enters a fenced enclosure around such a telecommunication office in contravention of any rule or notice not to do so;

(c) refuses to quit such room or enclosure on being requested to do so by any telecommunications officer or servant employed therein; or

(d) wilfully obstructs any such officer or servant in the performance of his duty,

shall be liable on conviction to imprisonment for a term not exceeding one year or a fine not exceeding one thousand dollars or to both such imprisonment and fine.

(2) Any person who does any of the acts mentioned in subsection (1) above with the intention of unlawfully learning the contents of any message, or of committing any offence punishable under this Decree, shall be liable on conviction (in addition to the penalty to which he may be liable under subsection (1) to a further term of imprisonment not exceeding one year or to a further fine not exceeding one thousand dollars or to both such further imprisonment and fine.

Detaining or altering a message or revealing its contents

37. Any telecommunications officer, or any person not being a telecommunications officer but having official duties connected with any office which is used as a telecommunication office of the Government or of a telecommunications operator, who-

(a) wilfully secretes, makes away with or alters any message which he has received for transmission or delivery; or

(b) wilfully and otherwise than in obedience to an order of the President or of an officer especially authorised by the President to make the order omits to transmit or detains any message or any part thereof,

shall be liable on conviction to imprisonment for a term not exceeding three years or to a fine not exceeding three thousand dollars or to both such imprisonment and fine.

Impeding or delaying messages

38. Any telecommunication officer or any person not being a telecommunications officer but having duties connected with any office which is used as a telecommunication office of the Government or of a telecommunications operator who is guilty of any act of drunkenness, carelessness, or other misconduct whereby the correct transmission or the delivery of any message is impeded or delayed, or any telecommunication officer who loiters or delays in the transmission or delivery of any message, shall be liable on conviction to imprisonment for a term not exceeding three months or to a fine not exceeding five hundred dollars or to both such imprisonment and fine.

Fraudulent retention of messages

39. Any person who-

(a) fraudulently retains, or wilfully secretes, makes away with, or detains a message which ought to have been delivered to some other person; or

(b) being required by a telecommunications officer to deliver up any such message, neglects or refuses to do so, shall be liable on conviction to imprisonment for a term not exceeding three years or to a fine not exceeding three thousand dollars or to both such imprisonment and fine.

Forgery of telegrams

40.-(1) Any person who with intent to deceive-

(a) forges or wilfully and without due authority alters a telegram; or

(b) utters a telegram knowing the same to be either forged or wilfully and without due authority altered,

shall be liable on conviction to imprisonment for a term not exceeding three years or to a fine not exceeding three thousand dollars or to both such imprisonment and fine.

(2) For the purposes of this section the expression "telegram" means written or printed communication sent to or delivered at a post office or telecommunication office for transmission by telecommunication and includes any facsimile or telex transmission.

Fraudulently transmitting messages

41.-Any telecommunications officer who uses any telecommunication system on which any charge payable therefor to his employer has not been paid, intending thereby to defraud his employer being a person licensed under this Decree to run that system shall be liable on conviction to imprisonment for a term not exceeding one year or to a fine not exceeding one thousand dollars or to both such imprisonment and fine.

Assisting the working of an unlicensed telecommunication and radio-communication

42.-Any person who, knowing or having reason to believe that a radio-communication station or telecommunication system is being run in contravention of this Decree-

(a) transmits or receives any message by such station, or system; or

(b) performs any service incidental thereto; or

(c) delivers any message for transmission by such station or system; or

(d) accepts delivery of any message sent thereby, shall be guilty of an offence and liable on conviction to a fine not exceeding one thousand dollars.

PART V-PROVISIONS RELATING TO RADIO-COMMUNICATION

Licensing of radio-communication

43.-(1) No person shall import, establish or use any station for radio-communication or import, install or use any apparatus for radio-communication except under the authority of a licence in that behalf granted by the Minister, and any person who imports, establishes or uses any station for radio-communication or imports, installs or uses any apparatus for radio-communication except under and in accordance with such a licence shall be guilty of an offence under this Decree: Provided that the Minister may by regulations exempt from the provisions of this subsection the importation, establishment, installation or use of stations or apparatus of such classes or descriptions as may be specified in the regulations, either absolutely or subject to such terms, conditions and limitations as may be so specified.

(2) A licence granted under this section (in this Decree referred to as a "radio-communication licence") may be issued subject to such terms, conditions and limitations as the Minister may think fit, including in particular in the case of a licence to establish a station, limitations as to the position and nature of the station, the purposes for which, the circumstances in which, and the persons by whom the station may be used, and the apparatus which may be, imported, installed or used therein, and in the case of any other licence, limitations as to the apparatus which may be installed or used, and the places where, the purposes for which, the circumstances in which and the persons by whom the apparatus may be used.

(3) A radio-communication licence shall, unless previously revoked by the Minister under any provision contained therein or under any provision of this Decree (including any subsidiary legislation hereunder), continue in force for such period as may be specified in the licence.

(4) A radio-communication licence may be revoked, or the terms, conditions or limitations thereof varied, by a notice in writing of the Minister served on the holder of the licence or by a general notice applicable to licences of the class to which the licence in question belongs published in such manner as maybe specified in the licence or where no manner of publication is specified, by publication in the Gazette.

(5) Where a radio-communication licence has expired or has been revoked, it shall be the duty of the person to whom the licence was issued, and of every other person in whose possession or under whose control the licence may be, to cause the licence to be surrendered to the Minister if required by the Minister so to do, and any person who without reasonable excuse fails or refuses to comply with the provisions of this subsection shall be guilty of an offence under this Decree:

Provided that this subsection shall not apply to a licence relating solely to apparatus not designed or adapted for transmission (as opposed to reception).

(6) Nothing in this section shall authorise the inclusion, in any radio-communication licence relating solely to apparatus not designed or adapted for transmission (as opposed to reception), of any term or provision requiring any person to concede any form of right of entry into any private dwelling-house.

(7) Nothing in subsection (1) above shall, unless the Minister shall by regulations otherwise provide, require a licence to be issued in respect of a broadcast receiving station.

(8) A person guilty of an offence against this section shall be liable upon conviction to imprisonment for a term not exceeding three years or to a fine not exceeding five thousand dollars or to both such imprisonment and fine.

(9) Subsection (10) below applies in any case where a radio-communication licence is granted to any person who holds a licence granted under section 7 above authorising the running of a telecommunication system ("the system"), and the radio-communication licence authorises all or any of the following, that is to say-

(a) the establishment of stations for radio-communication or the installation of apparatus for radio-communication being stations or apparatus forming or intended to form part of the system;

(b) the use of any such stations or apparatus in running the system; and

(c) the installation and use for the purpose of the system (whether by the holder of the licence or by any other person) of any such apparatus connected or intended to be connected to the system,

and does not apply unless the telecommunications licence is one to which section 8 above applies.

(10) In any case to which this subsection applies the radio-communication licence may include terms restricting the exercise by the Minister of his power under subsection (4) above to revoke or vary the licence.

(11) Without prejudice to the generality of subsection (l0) above, the terms that maybe included in a radio-communication licence by virtue of that subsection include, in particular, terms providing that the licence may not be revoked or varied except with the consent of the holder of the licence or (as the case may be) in such other circumstances and on such grounds as may be specified in the licence.

(12) Any, such circumstances of grounds may relate to matters relevant for purposes of Part II above as well as to matters relevant for purposes of this Part (and may, in particular, be dependent upon action taken under Part II in relation to the telecommunications licence).

(13) A radio-communication licence containing any terms included in the licence by virtue of subsection (9) above may also provide that subsidiary legislation made under this Part-

(a) shall not apply in relation to any such station or apparatus to which the licence relates; or

(b) shall apply in relation to any such station or apparatus to such an extent only, or subject to such modifications, as may be specified in the licence.

(14) Notwithstanding any term or provision included in a radio-communication licence in accordance with subsection (9) the Minister may at any time by a notice in writing served on the holder of the licence, revoke the licence or vary its terms, provisions or limitations, if it appears to him to be requisite or expedient to do so in the interests of national security or relations with the government of a country or territory outside Fiji.

Fees and charges for radio-communication licences

44.-(1) On the issue or renewal of a radio-communication licence, and, where the regulations so provide, at such times thereafter as maybe prescribed by regulations, there shall be paid to the Minister by the person to whom the licence is issued such sums as maybe prescribed in the regulations to be made by the Minister, and different provisions may be made in relation to different licences, according to the nature, terms, provisions, limitations and duration thereof:

Provided that the regulations made may contain provisions authorising, in such cases as are not otherwise dealt with by the regulations, the charge by the Minister of such sums, whether on the issue or renewal of the licence or subsequently, as may in the particular case appear to him to be proper, but this proviso shall not apply to licences of any type wholly or mainly intended to meet the needs of persons desiring to use, in a private dwelling-house and without making any charge to other persons, apparatus not designed or adapted for transmission (as opposed to reception).

(2) Where sums will or may become payable under subsection (1) of this section subsequent to the issue or renewal of a licence, the Minister may, on the issue or renewal thereof, require such security to be given, by way of deposit or otherwise, for the payment of the sums which will or may become payable as he thinks fit.

Approval of radio-communication apparatus, etc.

45.-(1) Where any licence granted under section 43 above contains any provision which is framed by reference to relevant apparatus for the time being approved under this section for the purposes of that licence, such apparatus may be approved for those purposes by the Minister.

In this subsection "relevant apparatus" means any radio communication station or apparatus, or apparatus designed or adapted for use in connection with any radio-communication station or apparatus.

(3) An approval under this section may apply either to particular apparatus or to any apparatus of a description specified in the approval, and may so apply either for the purposes of a particular instrument or for the purposes of instruments falling within any description so specified.

(4) An approval under this section may specify conditions which must be complied with if the approval is to apply, for any purposes specified in the approval, to any apparatus which is so specified or is of a description so specified, and any such condition may impose on the person to whom the approval is given a requirement from time to time to satisfy any person with respect to any matter.

(5) The Minister may at anytime, subject to such conditions and limitations as maybe prescribed in the regulations, vary or withdraw any approval given by him under this section.

(6) Nothing in this Decree shall preclude a person (not being the Minister or a person acting on his behalf) by whom any matter falls to be determined for the purposes of any requirement imposed in pursuance of subsection (2) or (4) above from charging any fee in respect of the carrying out of any test or other assessment made by him.

(7) Any sums received by the Minister under this section shall be paid into the Consolidated Fund.

Powers of Minister as to radio-communication operators

46.-(1) The Minister may hold examinations to determine the competence of the persons examined to fill positions in connection with the operation of radio-communication stations or radio-communication apparatus and may issue to persons successful at such examinations certificates of competency of such types as he may from time to time determine.

(2) The Minister may issue to such persons as he thinks fit authorities in writing authorising the persons to whom the authorities are issued to fill such positions in connection with the operation of radio-communication stations or radio-communication apparatus as may be specified in the respective authorities, being positions for the holding of which the possession of such an authority is, under radio-communication licences granted under this Decree, a necessity or a qualification.

(3) The Minister if it appears to him that there are sufficient grounds so to do, may at any time by notice suspend any authority granted under the last preceding subsection with a view to the revocation thereof, specifying in the notice the reasons why he proposes to revoke the authority and the time, not being less than 28 days from the date of publication of the notice within which the person whose authority has been suspended may show cause why his authority should not be revoked.

(4) If after the period specified and after considering any representations of the person whose authority has been suspended, the Minister is satisfied that there are sufficient grounds for revocation of the authority, he shall revoke that authority, but if he is satisfied that there are no sufficient grounds for such revocation, he shall forthwith lift the suspension.

(5) Where any authority granted under subsection (2) of this section has ceased to be in force, has been suspended or has been revoked, it shall be the duty of the person to whom the authority was issued, and of every other person in whose possession or under whose control the authority may be, to cause the authority to be surrendered to the Minister if required by the Minister so to do, and any person who without reasonable excuse fails or refuses to comply with the provisions of this subsection shall be guilty of an offence under this Decree and shall be liable upon conviction to imprisonment far a term not exceeding one year or to a fine not exceeding one thousand dollars or to both such imprisonment and fine.

Delegation of functions under sections 43, 45 and 46

47.-(1) A person appointed by order of the Minister may exercise any function (other than the power to make regulations and the power to suspend or revoke an authority under section 46) conferred on the Minister by sections 43, 45 and 46 above to such extent and subject to such conditions as may be specified in the order.

(2) The Minister may by order provide for the charging of fees in respect of the exercise of any function in pursuance of sections 43, 45 and 46 by or on behalf of the Minister.

(3) An order under subsection (1) above may authorise the person appointed to retain any fees received by him under this section.

Regulations as to radio-communication-general

48.-(1) The Minister may make regulations-

(a) prescribing the things which are to be done in connection with the use of any radio-communication station or radio-communication apparatus, and, in particular, requiring the use of any such station or apparatus to cease on the demand in that behalf of any such persons as may be prescribed by or under the regulations;

(b) imposing on the person to whom a radio-communication licence is issued with respect to any radio-communication station or radio-communication apparatus, or who is in possession or control of any radio-communication station or radio-communication apparatus, obligations as to permitting and facilitating the inspection of the station and apparatus by any such persons as may be prescribed by or under the regulations, as to the condition in which the station and apparatus are to be kept and, in the case of a station or apparatus for the importation, establishment, installation or use of which a radio-communication licence is necessary, as to the production of the licence, or of such other evidence of the licensing of the station or apparatus as may be prescribed by the regulations to any such persons as may be prescribed by or under the regulations;

(c) where sums are or may become due from the person to whom a radio-communication licence is issued after the issue or renewal thereof, requiring that person to keep and produce such accounts and records as maybe specified in the regulations; and

(d) requiring the person to whom a radio-communication licence authorising the establishment or use of a radio-communication station has been issued to exhibit at the station such notices as may be specified in the regulations,

and different provision may be made by any such regulations for different classes of case:-

Provided that nothing in any such regulations shall require any person to concede any form of right of entry into a private dwelling-house for the purpose of permitting of facilitating the inspection of any apparatus not designed or adapted for transmission (as opposed to reception).

(2) Any person who contravenes any regulations made under this section., or causes or permits any radio-communication station or radio-communication apparatus to be used in contravention of any such regulations, shall be guilty of an offence under this Decree and shall be liable upon conviction to imprisonment for a term not exceeding three years or to a fine not exceeding three thousand dollars or to both such imprisonment and fine.

Restriction on dealings in and custody of certain apparatus

49.-(1) In this section "apparatus" means any radio-communication station, any radio-communication apparatus and any apparatus designed or adapted for use in connection with any radio-communication station and apparatus.

(2) Where it appears to the Minister to be expedient to do so for the purpose of preventing or reducing the risk of interference with radio-communication he may make an order applying restrictions under this section in relation to apparatus to which this section applies of any class in description specified in the order.

(3) Any of the following actions in relation to any such apparatus is subject to restriction under this section-

(a) manufacture (whether or not for sale);

(b) selling or offering for sale, letting on hire or offering to let on hire, or indicating (whether by display of the apparatus or by any form of advertisement) one's willingness to sell or let on hire;

(c) having in one's custody or control; and

(d) importation.

(4) An order under this section shall specify such of the actions subject to restriction under this section as are restricted by the order in the case of apparatus of any class or description specified in the order.

(5) Any action for the time being restricted by an order under this section in the case of any apparatus is prohibited by this section-

(a) save with the authority of the Minister and subject to compliance with any terms and conditions attached by the Minister to that authority; or

(b) in the case of action within subsection (3)(c) above, save as mentioned in paragraph (a) above or as otherwise authorised by law apart from this section.

(6) An authority given by the Minister for the purposes of this section in the case of apparatus of any class or description specified in an order under this section may be limited-

(a) to such of the actions restricted by the order; and

(b) to such subsidiary class or description of apparatus within the class or description specified in the order;

as may be specified in the authority.

(7) Any terms or conditions attached by the Minister to any authority under this section for manufacture or importation may relate to a period after, as well as to the time of, or a period before, the manufacture or importation.

(8) The Minister's authority may be given, and any terms or conditions may be attached to it, either generally by means of a notice in the Fiji Republic Gazette or by an instrument in writing issued to each person authorised to do, in relation to apparatus of any class or description to which an order under this section relates, anything for the time being restricted by the order.

(9) The Minister shall not make any order under this section or give any authority for the purposes of this section or attach any term or condition to any such authority, unless the Minister is satisfied that the order, authority, term or condition in question is compatible with the international obligations of Fiji; and where any instrument containing such an order or any notice or instrument in writing giving such an authority or attaching any term or condition to such an authority contains a statement that the Minister is so satisfied, that statement shall be evidence of that fact.

(10) Where the importation of apparatus of any class or description to which this section applies is for the time being restricted by an order under this section, a person appointed by the Minister, or the Comptroller of Customs may require any person having custody or control of any apparatus of that class or description which is being or has been imported to furnish proof that the importation of the apparatus is or was not unlawful by virtue of this section; and if such proof is not furnished to the satisfaction of the Comptroller the apparatus shall be deemed, unless the contrary is proved, to be a prohibited import, and shall be liable to forfeiture under the customs laws for the time being in force.

(11) Any person who-

(a) takes any action within subsection 3(a) or (b) above in relation to any apparatus in contravention of subsection (5) above; or

(b) without reasonable excuse has any apparatus in his custody or control in contravention of that subsection; or

(c) contravenes or fails to comply with any terms or conditions attached to any authority given by the Minister for the purposes of this section (whatever the action to which that authority relates),

shall, without prejudice to any liability to a penalty which he may have incurred under the customs laws mentioned above, be guilty of an offence under this Decree and shall be liable upon conviction to imprisonment for a term not exceeding three years or to a fine not exceeding ten thousand dollars or to both such imprisonment and fine.

(12) An order made or an authority given under this section shall be published in the Gazette.

(13) For the avoidance of doubt, it is hereby declared that in this section "manufacture" includes construction by any method and the assembly of component parts.

Regulations as to radiation of electro-magnetic energy, etc.

50.-(1) The Minister may make regulations for both or either of the following purposes, that is to say-

(a) for prescribing the requirements to be complied with in the case of any apparatus to which this section applies if the apparatus is to be used;

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

(2) The said requirements shall be such requirements as the Minister thinks fit for the purpose of ensuring that the use of the apparatus does not cause undue interference with radio-communication, and may in particular include-

(a) requirements as to the maximum intensity of electro-magnetic energy of any specified frequencies which may be radiated in any direction from the apparatus while it is being used; and

(b) in the case of an apparatus the power for which is supplied from electric lines, requirements as to the maximum electro-magnetic energy of any specified frequencies which may be injected into those lines by the apparatus,

and, in so far as appears to the Minister necessary or expedient in the case of the regulations in question, different requirements may be prescribed for different circumstances and in relation to different classes or descriptions or apparatus, different districts or places and different times of use.

(3) The apparatus to which this section applies shall be such apparatus, whether or not designed or adapted for radio-communication, as maybe specified in the regulations made hereunder, being apparatus generating, or designed to generate, or liable to generate fortuitously, electro-magnetic energy at frequencies of not more than three million megacycles per second.

The references in this subsection to apparatus include references to any form of electric line.

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

Enforcement of electro-magnetic energy regulations as to use of apparatus

51.-(1) If the Minister is of opinion-

(a) that any apparatus does not comply with the requirement applicable to it under regulations made for the purpose specified in paragraph (a) of subsection (1) of the last preceding section; and

(b) that either-

(i) the use of the apparatus is likely to cause undue interference with any radio-communication used for the purposes of any safety of life service or for any purpose on which the safety of any person or of any vessel, aircraft or vehicle may depend; or

(ii) the use of the apparatus is likely to cause undue interference with any other radio-communication and in fact has caused or is causing such interference in a case where he considers that all reasonable steps to minimize interference have been taken in relation to the station or apparatus receiving the radio-communication,

he may serve on the person in whose possession the apparatus is a notice in writing requiring that, after a date fixed by the notice not being less than twenty-eight days from the day of the service thereof, the apparatus shall not be used, whether by the person to whom the notice is-given or otherwise, or, if the Minister thinks fit so to frame the notice, shall only be used in such manner, at such times and in such circumstances as may be specified in the notice:

Provided that if the Minister is satisfied that the use of the apparatus in question is likely to cause undue interference with any radio-communication used for the purposes of any safety of life service or for any purpose on which the safety of any person or of any vessel, aircraft or vehicle may depend, the date to be fixed by the notice may be the date of the service thereof.

(2) A notice under subsection(1) of this section maybe revoked or varied by a subsequent notice in writing by the Minister served on the person in whose possession the apparatus then is:

Provided that where a notice under this subsection has the effect of imposing any additional restrictions on the use of the apparatus, the provisions of subsection (1) above relating to the corning into force of notices shall apply in relation to the notice as if it had been a notice served under the said subsection (1).

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

(a) the apparatus in question so complies he shall revoke the notice; or

(b) that the said requirements ought properly to be relaxed in relation to the apparatus, may revoke the notice or vary it in such manner as he sees fit:

Provided that nothing done under this subsection shall prevent any such person as is mentioned above from serving a further notice under this subsection and shall not, where the Minister is of opinion that there has been a relevant change in the circumstances, prevent the Minister from giving a further notice under subsection (1) or subsection (2) above.

(4) A revocation or variation made under subsection (2) or (3) above may be absolute, or may be conditional on such steps being taken in relation to the apparatus, or on the apparatus being made to comply with such requirements, as may be specified.

(5) Any person who, knowing that a notice of the Minister under this section is in force with respect to any apparatus, uses that apparatus, or causes or permits it to be used, in contravention of the notice, shall be guilty of an offence under this Decree and shall be liable on conviction to imprisonment for a term not exceeding three years or to a fine not exceeding five thousand dollars or to both such fine and imprisonment.

Enforcement of regulations as to sales, etc., by manufacturers and others

52.-(1) If the Minister is of opinion that any apparatus does not comply with the requirements applicable to it under regulations made for the purpose specified in paragraph (b) of subsection (1) of section 50 above, he may serve on any person who has manufactured, assembled or imported the apparatus in the course of business a notice in writing prohibiting him from selling the apparatus, or offering or advertising it for sale, or letting it on hire or offering or advertising it for letting on hire.

(2) The provisions of subsection (2) to (5) of section 51 above shall apply with necessary modifications for the purposes of this section as they apply for the purpose of that section.

Regulations with respect to resistance to interference

53.-(1) Subsection (1) of section 49 above applies for the purposes of this section as it applies for the purposes of that section.

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

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

(4) Subject to subsection (5) of this section, any person who in the course of business-

(a) sells otherwise than for export or offers for sale otherwise than for export any apparatus which does not comply with the technical requirements applicable to it under regulations made under this section; or

(b) lets on hire or offers to let on hire any such apparatus; or

(c) indicates (whether by display of the apparatus or by any form of advertisement) his willingness to do anything in relation to any such apparatus that falls within paragraph (a) or (b) above,

shall be guilty of an offence under this Decree and shall be liable upon conviction to imprisonment for a term not exceeding three years or to a fine not exceeding ten thousand dollars or to both such imprisonment and fine.

(5) In proceedings for an offence under this section brought against any person other than one who in the course of business has manufactured, assembled or imported the apparatus to which the proceedings relate it shall be a defence for the accused to show that he did not know and could not with reasonable care have ascertained that the apparatus did not comply with the requirements in question.

Radio interference service

54.-(1) The payment out of public funds of any expenses incurred by the Minister, or by any person appointed by the Minister for such purpose, in providing a radio interference service is hereby authorised.

(2) In this section "radio interference service" means a service consisting in the giving of advice and assistance (whether free of charge or otherwise) to persons complaining of interference with radio-communication.

Misleading messages and interception and disclosure of messages

55.-Any person who-

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

(b) otherwise than in accordance with sections 60 and 61 below, under the authority of the President or an officer of the Government specially authorised by the President for that purpose-

(i) uses any radio-communication station apparatus with intent to obtain information as to the contents, sender or addressee of any message, (whether sent by means of radio-communication or not) which neither the person using the station or apparatus nor any person on whose behalf he is acting is authorised to receive; or

(ii) except in the course of legal proceedings or for the purpose of any report thereof, discloses any information as to the contents, sender or addressee of any such message, being information which would not have come to his knowledge but for the use of the radio-communication station or apparatus by him or another person,

is guilty of an offence and shall be liable upon conviction to imprisonment for a term not exceeding three years or to a fine not exceeding three thousand dollars or to both such imprisonment and fine.

Deliberate interference

56.-(1) Any person who uses any station or apparatus for the purpose of interfering with any radio-communication shall be guilty of an offence under this Decree and shall be liable on conviction to imprisonment for a term not exceeding one year or to a fine not exceeding five thousand dollars or to both such imprisonment and fine.

(2) This section shall apply whether or not the station or apparatus in question is a radio-communication station or radio-communication apparatus or apparatus to which any of the preceding provisions of this Part of this Decree apply, and whether or not any notice under section 51 or section 52 above of this Decree has been given with respect to the apparatus, or, if given, has been varied or revoked.

Territorial extent of preceding provisions

57.-(1) Subject to the provisions of this section, the preceding provisions of this Part of this Decree shall apply-

(a) to all stations and apparatus in or over, or for the time being in or over Fiji or the territorial waters adjacent thereto; and

(b) subject to any limitations which the Minister may by regulations determine, to all stations and apparatus on board any vessel or aircraft which is registered in Fiji but is not for the time being in or over Fiji or the said territorial waters; and

(c) subject to any limitations which the Minister may by regulations determine, to all apparatus which is not in or over Fiji or the said territorial waters but was released from within Fiji or the said territorial waters, or from any vessel or aircraft which is registered in Fiji,

and, without prejudice to the liability of any other person, in the event of any contravention of the said provisions or of any regulations or order made thereunder occurring in relation to any station or apparatus on board or released from any vessel or aircraft, the captain or the person for the time being in charge of the vessel or aircraft shall be guilty of an offence under this Decree:

Provided that the captain or person for the time being in charge of a vessel or aircraft shall not be guilty of any offence under this Decree by reason of any contravention of the said provisions of regulations occurring in relation to apparatus on board the vessel or aircraft if the contravention consists of the use by a passenger on board the vessel or aircraft of apparatus not designed or adapted for transmission (as opposed to reception) which is not part of the radio-communication apparatus, if any, of the vessel or aircraft.

(2) The Minister may make regulations for regulating the use on board any vessel or aircraft, not being registered in Fiji, while that ship or aircraft is within the limits of Fiji and the territorial waters adjacent thereto, of radio-communication station or apparatus on board the vessel or aircraft, and such regulations may provide for the punishment of persons contravening the regulations by such fine, not exceeding in the case of any one offence five thousand dollars, as may be specified in the regulations, and for the forfeiture of any radio-communication station or apparatus in respect of which an offence under such regulations is committed; but, save as aforesaid, nothing in this Part of this Decree shall operate so as to impose any prohibition or restriction on persons using any radio-communication station or apparatus on board any such vessel or aircraft as aforesaid.

Onus of proof-radio-communication

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

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

Compounding of offence

59.-(1) The Minister may, if satisfied that any person has committed an offence in connexion with a radio-communication station not being a station adapted for transmission (as opposed to reception), accept from such person a sum of money by way of compensation for such offence:

Provided that such compensation shall not exceed twice the sum payable for a licence for such radio-communication station.

(2) Such compensation shall be accepted only in cases where the person reasonably suspected of having committed an offence has expressed his consent in writing to the offence being dealt with under this section.

(3) Its any proceedings brought against any person for an offence against this Decree it shall be a good defence if such person proves to the satisfaction of the court that he has compounded the offence under the provisions of this section.

PART VI-TELECOMMUNICATIONS-MISCELLANEOUS

Powers of Government in emergency

60.-(1) On the occasion of any public emergency or in the interest of public safety the President or any officer of the Government specially authorised in that behalf by the President may-

(a) take temporary possession of any radio-communication station or radio-communication apparatus or any telecommunication system run in Fiji by any person;

(b) prohibit or regulate the use of such radio-communication stations, and radio-communication apparatus and such telecommunication systems as he thinks fit;

(c) order that any message or class of messages to or from any person or class of persons or relating to any particular subject matter, brought for transmission by or transmitted or received by any radio-communication station or telecommunication system shall not be transmitted or shall be interrupted or detained or shall be disclosed to the President or to any officer of the Government mentioned in the order:

Provided that any order made under paragraph (c) shall not be construed to apply to the use of radio-communication for the purpose of making or answering signals of distress.

(2) If any doubt arises as to the existence of a public emergency or whether any act done under this section was in the interests of public safety a certificate signed by the President and delivered to the person in charge of the radio-communication station or radio-communication apparatus or telecommunication system shall be conclusive proof of the fact.

(3) Any person who obstructs an officer authorised under subsection (1) of this section in the exercise of his powers under this section or who fails to comply with a prohibition, regulation or order made under this section shall be liable on conviction to imprisonment for a term not exceeding one year or to a fine not exceeding one thousand dollars or to both such imprisonment and fine.

Power to require production of messages

61. Where it appears to the President, acting upon the advice of the Prime Minister and the Cabinet, that such a course is expedient in the public interest, he may by warrant under his hand require any person running any radio-communication station or telecommunication system to produce to him or to any person named in the warrant the originals and transcripts of all messages or of messages of any specified class or description or of messages sent from or addressed to any specified person or place by means of such radio-communication station or telecommunication and all other papers relating to such messages.

Regulations-General

62.-(1) The Minister may make regulations for any purpose for which regulations or orders may be made under Parts II to V and this Part and generally for the purpose of carrying Parts II to V and this Part into effect and in particular but without prejudice to the generality of the foregoing may make regulations with respect to any of the following matters:

(a) the running of telecommunications systems;

(b) the secrecy of telecommunications;

(c) the provision of such telecommunication services as are mentioned in section 2(1)(i) above, in particular the manner in which such services shall be offered and performed licences and the payment of fees in respect thereof, and such other matters as he sees fit;

(d) the period during which and the conditions subject to which messages and papers relating thereto, belonging to, or in custody of carriers shall be preserved;

(e) the licensing and fees therefore of dealers in radio-communication apparatus and the sale, transfer or use of radio-communication apparatus;

(f) the conduct of examinations for radio-communication operators, the content thereof and the issue of certificates of competence respect thereof;

(g) the issue, variation and withdrawal of approvals in respect of radio-communication stations and apparatus and apparatus for connection to any telecommunication system licensed under this Decree;

(h) the issue, variation and withdrawal of approvals in respect of contractors for relevant operations in connection with any telecommunications system;

(i) the issue, suspension and revocation of authorities to fill positions in respect of radio-communications;

(j) fees and other charges for any matter permitted or matters required to be done by him or a person acting on his behalf under the preceding provisions of this Decree;

(k) the form of any licence, notice, approval, certificate authority or other written document required or permitted to be issued by or to the Minister or any person acting on his behalf under the preceding provisions of this Decree,

and different regulations may be made as respect different classes or descriptions of radio-communication stations and apparatus or telecommunications or as respects the same class of description of radio-communication stations and apparatus or telecommunications in different circumstances or as respects different districts or places in Fiji.

(2) Regulations made under this section may impose penalties for any contravention or failure to comply with any of the provisions of such regulations.

(3) The penalties which maybe imposed under subsection (2) shall not exceed a fine of five thousand dollars or three years imprisonment or both such fine and imprisonment together with, in the case of a continuing offence, a further fine not exceeding two hundred dollars for each day during which the offence continues.

Entry and search of premises, etc.

63.-(1) If a resident magistrate is satisfied by information on oath that there is reasonable ground for suspecting that an offence under the preceding provisions of this Decree has been or is being committed, and that evidence of the commission of the offence is to be found on any premises specified in the information, or in any vehicle, vessel or aircraft so specified, he may grant a search warrant authorising any person or persons authorised in that behalf by the Minister and named in the warrant, with any police officer, to enter, at any time within one month from the date of the warrant, the premises specified in the information or, as the case maybe, the vehicle, vessel or aircraft so specified and any premises upon which it may be, and to search the premises, or, as the case may be, the vehicle, vessel or aircraft, and to examine and test any station or apparatus found on the premises, vessel, vehicle or aircraft.

(2) If a resident magistrate is satisfied upon an application supported by sworn evidence-

(a) that there is reasonable ground for believing that, on any specified premises or in any specified vessel, aircraft or vehicle, a station or apparatus to which section 50 of this Decree applies is to be found which does not comply with the requirements applicable to it under regulations made under that section; and

(b) that it is necessary to enter those premises, or that vessel, aircraft or vehicle, for the purpose of obtaining such information as will enable the Minister to decide whether or not to serve a notice under section 51 or section 52 above; and

(c) that access to the premises, vessel, aircraft or vehicle for the purpose of obtaining such information as aforesaid has, within seven days before the date of the application to the magistrate, been demanded by a person authorised in that behalf by the Minister and producing sufficient documentary evidence of his identity and authority, but has been refused,

the resident magistrate may issue a written authorisation under his hand empowering any person or persons authorised in that behalf by the Minister and named in the authorisation, with any police officer, to enter the premises or, as the case may be, the vessel, aircraft or vehicle and any premises on which it may be and to search the premises, vessel, aircraft or vehicle with a view to discovering whether any such apparatus as aforesaid is situate thereon or therein and if he finds or they find any such apparatus thereon, or therein, to examine and test it with a view to obtaining such information as aforesaid:

Provided that an authorisation shall not be issued under this subsection unless either-

(i) it is shown to the resident magistrate that the Minister is satisfied that there is reasonable ground for believing that the use of the apparatus in question is likely to cause undue interference with any radio-communication used for the purposes of any safety of life service or any purpose on which the safety or any person or of any vessel, aircraft or vehicle may depend; or

(ii) it is shown to the resident magistrate that not less than seven days' notice of the demand for access was served on the occupier of the premises, or, as the case may be, the person in possession or the person in charge of the vessel, aircraft or vehicle, and that the demand was made at a reasonable hour and was unreasonably refused.

(3) Where under this section a person has a right to examine and test any station or apparatus on any premises or in any vessel, aircraft or vehicle, it shall be the duty of any person who is on the premises, or is in charge of, or in or in attendance on, the vessel, aircraft or vehicle to give him any such assistance as he may reasonably require in the examination or testing of the station or apparatus.

(4) Any person who-

(a) obstructs any person in the exercise of the powers conferred on him under this section; or

(b) fails or refuses to give to any such person any assistance which he is under this section under a duty to give to him; or

(c) discloses, otherwise than for the purposes of this Decree or any report of proceedings thereunder, any information obtained by means of the exercise of powers under this Decree, being information with regard to any manufacturing process or trade secret,

Seizure of apparatus and other property used in committing certain offences under this Decree

64.-(1) This section applies to offences committed against the provisions of sections 5, 15 and 60 and Part V above.

(2) Where-

(a) a search warrant is granted under the previous section of this Decree; and

(b) the suspected offence (or any of the suspected offences) is an offence to which this section applies;

the warrant may authorise the person or persons named in it to seize and detain, for the purposes of any relevant proceedings, any station, apparatus or other thing found in the course of the search carried out in pursuance of the warrant which appears to him or them to have been used in connection with or to be evidence of the commission of any such offence.

(3) If a police officer or any person authorised by the warrant to exercise the power conferred by this subsection has reasonable grounds to suspect that an offence to which this section applies has been or is being committed, he may seize and detain, for the purposes of any relevant proceedings, any station, apparatus or other thing which appears to him to have been used in connection with or to be evidence of the commission of any such offence.

(4) Nothing in this section shall prejudice any power to seize or detain property which is exercisable by a police officer part from this section.

(5) Any person who intentionally obstructs any person in the exercise of the power conferred on him under subsection (3) above shall be guilty of an offence and shall be liable upon conviction to imprisonment for a term not exceeding one year or to a fine not exceeding one thousand dollars or to both such imprisonment and fine.

(6) References in this section to relevant proceedings are references to-

(a) any proceedings for an offence to which this section applies; and

(b) any proceedings for forfeiture under section 65 below.

Forfeiture on conviction

65.-(1) Where a person is convicted of-

(a) any offence under sections 5, 15 or 60 of this Decree; or

(b) an offence under this Decree consisting in any contravention of any of the provisions of Part V of this Decree in relation to any radio-communication station or any radio-communication apparatus or in the use of any apparatus for the purpose of interfering with any radio-communication,

the court may in addition to any other penalty, order all or any of the apparatus of the telecommunication system, the radio-communication station or apparatus, or (as the case may be) the apparatus in connection with which the offence was committed, to be forfeited to the Minister.

The power conferred by virtue of paragraph (a) or (b) above does not apply to radio-communication apparatus not designed or adapted for transmission (as opposed to reception).

(2) Apparatus maybe ordered to be forfeited under this section notwithstanding that it is not the property of the person by whom the offence giving rise to the forfeiture was committed, and any apparatus ordered to be forfeited under this section may be disposed of by the Minister in such manner as he thinks fit.

(3) Subsection (1) or (2) of this section have effect notwithstanding anything in the Magistrates' Courts Act, the Criminal Procedure Code or the High Court Act.

(4) The court by whom any apparatus is ordered to be forfeited under this section may also order the person by whom the offence giving rise to the forfeiture was committed not to dispose of that apparatus except by delivering it up to the Minister within forty-eight hours of being so required by him.

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

Disposal of apparatus and other property seized by virtue of section

66.-(1) Any property seized by a person authorised by a warrant under section 64 above maybe detained-

(a) until the end of the period of six months beginning with the date of the seizure; or

(b) if proceedings for an offence involving that property are instituted within that period, until the conclusion of those proceedings.

(2) After the end of the period for which its detention is authorised by virtue of subsection (1) above, any such property which-

(a) remains in the possession of the Minister; and

(b) has not been ordered to be forfeited under section 65,

shall be dealt with in accordance with the following provisions of this section (and references in those provisions to the relevant property are references to any property to which this subsection applies).

(3) The Minister shall take reasonable steps to deliver the relevant property to any person appearing to him to be its owner.

(4) Where the relevant property remains in the possession of the Minister after the end of the period of one year immediately following the end of the period for which its detention is authorised by subsection (1) above, the Minister may dispose of it in such manner as he thinks fit.

(5) The delivery of the relevant property, in accordance with subsection (3) above to any person appearing to the Minister to be its owner shall not affect the right of any other person to take legal proceedings against the person to whom it is delivered or against anyone subsequently in possession of the property for the recovery of the property.

Admissibility of transcript message in judicial proceedings

67. The transcript of every message after transmission shall before delivery thereof to a person to whom the same is addressed be stamped or initialled by the persons receiving the same for delivery, and such transcript message, purporting to have been so stamped or initialled, shall be admissible in every court and in every judicial proceeding as prima facie evidence of the matter therein contained being the same as that stated in the original message left for transmission and it shall not be necessary to prove the signature of the person purporting to have signed such original message or that the same was left at any telecommunication office for transmission, nor to prove the stamp or initials of the person receiving such transcript for delivery.

PART VII-TRANSFER OF UNDERTAKING OF DEPARTMENT OF POSTS AND TELECOMMUNICATIONS

Interpretation

68.-(1) In this Part-

"debenture" includes debenture stock;

"securities", in relation to a company, includes shares, debentures, bonds and other securities of the company, whether or not constituting a charge on the assets of the company;

"shares" includes stock;

"subsidiary" has the same meaning as in the Companies Act, 1983.

(2) An order under section 69(2) below nominating any company for the purposes of that section and an order under subsection (1) of that section appointing the transfer date may be varied or revoked by a subsequent order at any time before any property, rights or liabilities vest in any company by virtue of section 69 below.

(3) A company shall be regarded for the purposes of this Part as wholly owned by the Government at any time when all the issued shares in the company are held by or on behalf of the Government.

Vesting of property etc. of Department of Posts and Telecommunications in a company nominated by the Minister

69.-(1) On such day as the Minister may by order appoint for the purposes of this Part (in this Decree referred to as "the transfer date"), all the property, rights and liabilities to which the Department of Posts and Telecommunications was entitled or subject immediately before that date shall, without further assurance (subject to the following provisions of this section) become by virtue of this section property, rights and liabilities of a company nominated for the purposes of this section by the Minister (in this Decree referred to as "the Company").

(2) The Minister may, by order nominate for the purposes of this section any company formed and registered under the Companies Act, 1983; but on the transfer date the company in question must be a company limited by shares all of which are held on behalf of the Government.

(3) References in this Decree to property, rights and liabilities of the Department of Posts and Telecommunications are references to all such property, rights and liabilities, whether or not capable of being transferred to [sic] assigned by the Department.

(4) It is hereby declared for the avoidance of doubt that-

(a) any reference in this Decree to property of the Department of Posts and Telecommunications is a reference to property of the Department of Posts and Telecommunications whether situated in Fiji or elsewhere;

(b) any such reference to rights or liabilities of the Department of Posts and Telecommunications is a reference to rights to which the Department is entitled, or (as the case may be) liabilities to which it is subject, whether under the law of Fiji or otherwise;

(c) any such reference to the property, rights or liabilities of the Department of Posts and Telecommunications shall be a reference to all property, rights and liabilities appearing in the books of account kept by the Department of Posts and Telecommunications as property, rights and liabilities belonging to it, and shall include-

(i) all property (real or personal) which before the appointed day is vested in the Department of Posts and Telecommunications (or in any public officer in that Department) and held in trust for the Government or deemed to be invested by the Government therein;

(ii) all property (real or personal) which, immediately before that day, is vested in the Government and used, or appropriated for use, for the exercise and performance of any of the functions of the Department of Posts and Telecommunications (or the statutory functions of any public officer within that Department);

(iii) all rights and liabilities enjoyed by, or incumbent on, the Government immediately before the appointed day with reference to the functions of the Department of Posts and Telecommunications (or the statutory functions of any public officer within that Department);

(d) Any such reference to the property, rights or liabilities of the Department of Posts and Telecommunications shall not include-

(i) any contract of employment;

(ii) any liability in respect of any pension or gratuity to any person who immediately before the transfer date was a pensionable officer within the laws for the time being in force governing the payment of pensions by the Government;

(iii) any property, rights or liabilities the subject of any agreement entered into in pursuance of subsection (6) or (8) below.

(iv) where any interest in any property, or right covered by sub-section (4) (c) above is divided, the proportional division thereof.

(5) Public records and copyright shall be excepted from the operation of subsection (1).

(6) Subject to section 70 below, any time before the transfer date the Department of Posts and Telecommunications and the Company may agree in writing that subsection (1) shall not have effect in relation to any property, rights and liabilities specified in the agreement.

(7) Without prejudice to any other provision of this Decree, the Government and the Company shall as soon as practicable after the transfer date, as far as practicable, arrive at such written agreements and execute such other instruments as are necessary or expedient to identify, and define the property, rights and liabilities transferred to the Company or retained by the Government under this section or section 70 below and will fulfil the requirements of any law, which might have applied if the property, rights and liabilities and been transferred otherwise than by and under this Decree.

(8) Subject to section 70 below, at anytime before the expiration of twelve months beginning with the transfer date the Department of Posts and Telecommunications and the Company may agree in writing that, as from such date, not earlier than the appointed day, as may be specified in or determined by or under the agreement and in such circumstances (if any) as may be so specified-

(a) there shall be transferred from the Department of Posts and Telecommunications to, and vested in, the Company any property, rights and liabilities specified in the agreement; or

(b) there shall be transferred from the Company to, and vested in, the Department of Posts and Telecommunications any property, rights and liabilities so specified.

(9) In the case of any agreement under subsection (8) the property, rights and liabilities in question shall on the date of the coming into force of the agreement be transferred, and by virtue of the agreement vest, in accordance with the agreement.

(10) All deeds, bonds, instruments and agreements, and working arrangements (whether or not in writing) subsisting immediately before the transfer date, affecting any of the property, liabilities or rights transferred to the Company under this section or section 70 below from the Department of Posts and Telecommunications shall be of full force and effect against or in favour of the Company, and enforceable as fully and effectually as if, instead of the Department of Posts and Telecommunications, the Government or any person acting on behalf thereof, the Company had been named therein or had been a party thereto.

(11) Any proceeding or cause of action pending or existing immediately before the transfer date or against the Department of Posts and Telecommunications, the Government or any person acting on behalf of the Government in respect of any of such transferred undertaking shall be continued enforced by or against the Company as it might have been enforced against the Department of Posts and Telecommunications, the Government or such person, if this Decree had not been made.

(12) Any transfer effected by or made under this section shall be binding on all other persons, and notwithstanding that it would apart from this section have required the consent or concurrence of any other person.

(13) Where any property, rights or liabilities which fall to be transferred under this section cannot be properly vested hereunder because transfers thereof are governed otherwise than by the laws of Fiji, the person from whom such property, right or liability is transferred shall take all practicable steps for the purpose of securing that such property, right or liability is effectively transferred under this section.

Power of the Minister to override section 69 in case of difficulty or uncertainty

70.-(1) If it appears to the Minister expedient so to do for the purpose of removing any difficulties or uncertainties arising out of the operation of the section 69 above, he may by order-

(a) direct that such property, rights or liabilities as may be specified in the order (being property, rights or liabilities which, apart from the order, would vest in the Company by virtue of that section or which have so vested) shall, notwithstanding that section, not so vest or, as the case may be, be deemed not to have so vested; or

(b) direct that such property (other than land), rights or liabilities as may be so specified (being property, rights or liabilities which, apart from the order, would not so vest or which have not so vested) shall, notwithstanding that section, so vest or be deemed to have so vested on the appointed day or, as the case may be, on such day as may be so specified.

(2) No order shall be made under this section by the Minister with respect to chattels or corporeal moveables after the expiration of the period of twelve months beginning with the transfer date.

(3) The Minister may give a certificate certifying that such property, rights or liabilities specified in the certificate (being property, rights or liabilities which may have vested by virtue of section 69 but which vesting is uncertain) are by virtue of this Decree for the time being vested in the Government or the Company, which ever is specified, and the certificate shall be conclusive evidence for all purposes of such fact.

(4) Subsections (l2) and (13) of section 69 above shall apply for the purposes of this section as they apply for the purposes of that section.

Initial Government holding in the Company

71.-(1) As a consequence of the vesting in the Company by virtue of sections 69 and 70 above of property, rights and liabilities of the Department of Posts and Telecommunications, the Company shall issue such securities of the Company as the Minister may from time to time direct-

(a) to the Minister; or

(b) to any person entitled to require the issue of the securities following their initial allotment to the Minister.

(2) The Minister shall not give a direction under subsection (1) above at a time when the Company has ceased to be wholly owned by the Government.

(3) Securities required to be issued in pursuance of this section shall be issued or allotted at such time or times and on such terms (as to allotment) as the Minister may direct.

(4) Shares issued in pursuance of this section-

(a) shall be of such nominal value as the Minister may direct; and

(b) shall be issued as fully paid and treated for the purposes of the Companies Act 1983 as if they had been paid up by virtue of the payment to the Company of their nominal value in cash.

(5) The Minister may not exercise any power conferred on him by this section, or dispose of any securities issued or of any rights to securities initially allotted to him in pursuance of this section, without the consent of the Minister responsible for finance.

(6) Any dividends or other sums received by the Minister in right of or on the disposal of any securities or rights acquired by virtue of this section shall be paid into the Consolidated Fund.

(7) Stamp duty shall not be chargeable in respect of any increase in the capital of the Company which is effected by the issue of shares allotted at a time when the company was wholly owned by the Government and is certified by the Minister responsible for finance as having been-

(a) effected for the purpose of complying with the requirements of this section; and

(b) where any convertible securities were issued in pursuance of this section, effected in consequence of the exercise of the conversion rights attached to those securities.

Conversion of certain loans vested in the Company

72.-(1) The Minister responsible for finance may be order extinguish all or any liabilities of the Company to the Government in respect of the principal or interest (including prospective interest) of such transferred loans as may be specified in the order, and the Consolidated Fund, in particular the Lending Fund Account, shall be adjusted and the assets of such Fund shall accordingly be reduced by amounts corresponding to the liability so extinguished.

(2) As a consequence of the extinguishment by an order under subsection (1) above of any such liabilities, the Company shall issue such securities of the Company as the Minister may direct-

(a) to the Minister; or

(b) to any person entitled to require the issue of the securities following their actual allotment to the Minister.

(3) The Minister responsible for finance shall not make an order under this section nor shall the Minister give any direction under this section at anytime when the Company has ceased to be wholly owned by the Government.

(4) Except as may be agreed between the Minister and the Company-

(a) the aggregate of the principal sums payable under any debentures issued to repay that which is extinguished by the order; and

(b) the terms as to the payment of the principal sums so payable, and as to the payment of interest thereon,

shall be the same as the corresponding terms of the transferred loans specified in the order.

(5) For the purposes of subsection (4) above any express or implied terms of a transferred loan shall be disregarded in so far as they relate to the early discharge of liabilities to make repayments or principal and payments of interest.

Government investment in securities of the Company

73.-(1) The Minister may at any time, with the consent of the Minister responsible for finance, acquire-

(a) securities of the Company or of any subsidiary of the Company; or

(b) rights to subscribe for any such securities.

(2) The Minister may not dispose of any securities or rights acquired under this section without the consent of the Minister responsible for finance.

(3) Any expenses incurred by the Minister in consequence of the provisions of this section shall be paid out of public funds.

(4) Any dividends or other sums received by the Minister in right of, or on the disposal of, any securities or rights acquired under this section shall be paid into the Consolidated Fund.

(5) Stamp duty shall not be chargeable under the Stamp Duties Act (Cap. 205) in respect of any increase in the capital of the Company which-

(a) is effected by the issue of shares allotted at a time when the Company is wholly owned by the Government; and

(b) is certified by the Minister responsible for finance as having been effected by the issue of shares subscribed for by the Minister under subsection (1)(a) above.

Exercise of the Minister's functions through nominees

74.-(1) The Minister may with the consent of the Minister responsible for finance appoint such person or persons as he thinks fit to act as his nominees for the purposes of section 71,72 or 73 above; and-

(a) securities of the Company may be issued under section 71 or 72 above to any nominee of the Minister appointed for the purposes of that section or to any person entitled to require the issue of the securities following their initial allotment to any such nominee; and

(b) any such nominee appointed for the purposes of section 73 above may acquire securities or rights in accordance with that section,

in accordance with directions given from time to time by the Minister with the consent of the Minister responsible for finance.

(2) Any person holding any securities or rights as a nominee of the Minister by virtue of subsection (1) above shall hold and deal with them (or any of them) on such terms and in such manner as the Minister may direct with the consent of the Minister responsible for finance.

Temporary restrictions on Company's borrowings etc.

75.-(1) If articles of association of the Company confer on the Minister powers exercisable with the consent of the Minister responsible for finance for, or in connection with, restricting the sums of money which may be borrowed or raised by the Company or by the group during any period, those powers shall be exercisable in the national interest notwithstanding any rule of law and the provisions of any written law.

(2) For the purposes of this section any alteration of the articles of association of the Company which-

(a) has the effect of conferring or extending any such power as is mentioned in subsection (1) above; and

(b) is made at a time when the Company has ceased to be wholly owned by the Government,

shall be disregarded.

(3) In this section "group" means the Company and all of its subsidiaries taken together.

Liability of Minister in respect of liabilities vesting in the Company

76.-(1) This section applies where-

(a) a resolution has been passed, in accordance with the Companies Act 1983, for the voluntary winding up of the Company, otherwise than merely for the purpose of reconstruction or amalgamation with another company; or

(b) without any such resolution having been passed beforehand, an order has been made for the winding up of the Company by the court under that Act.

(2) The Minister shall become liable on the commencement of the winding up to discharge any outstanding liability of the Company which vested in that company by virtue of section 69 or 70 above.

(3) Any sums required by the Minister for discharging any liability imposed on him by this section shall be paid out of public funds.

(4) Where the Minister makes a payment to any person in charge of what appears to him to be a liability imposed on him by this section, he shall thereupon become a creditor of the Company to the extent of the amount paid, his claim being treated for the purposes of the winding up as a claim in respect of the original liability.

(5) Any sums received by the Minister in respect of any claim made by virtue of subsection (4) above in the winding up of the Company shall be paid into the Consolidated Fund.

(6) The reference in subsection (2) above to the commencement of the winding up is a reference-

(a) in a case within subsection (1)(a) above, to the passing of the resolution; and

(b) in a case within subsection (1)(b) above, to the making of the order.

Application of law in relation to offer of shares or debentures of the Company

77.-(1) This section applies where the Minister or his nominee offers for sale to the public
shares or debentures of the Company at a time when it is wholly owned by the Government; and in this section "full prospectus" means a prospectus which complies, or is deemed to comply, with the requirements of Schedule 4 to the Companies Act, 1983 (matters to be specified in prospectus and reports to be set out therein).

(2) If the shares or debentures are offered by a full prospectus as respects which the conditions mentioned in subsection (3) below are fulfilled (in this section referred to as "the offer prospectus"), any form of application for the shares or debentures may (instead of being issued with a full prospectus) be issued with a notice given by the Minister which includes-

(a) a brief description of the shares or debentures offered, the terms of the offer, the Company's business and its financial position;

(b) an indication of the places in Fiji where copies of the offer prospectus are to be available for inspection by members of the public; and

(c) a statement of the effect of subsections (4) and (5) below.

(3) The said conditions are-

(a) that a copy of the prospectus has been delivered to the registrar (as defined in section 2 of the Companies Act of 1983) in pursuance of section 45 of the said Act of 1983; and

(b) that arrangements have been made with a view to securing-

(i) that on or before the date of receipt of the form of application by a member of the public a copy of the prospectus is published in a national newspaper; and

(ii) that on that date copies of the prospectus are generally available in Fiji for inspection by members of the public.

(4) Where a form of application is issued without a full prospectus but with a notice given by the Minister under subsection (2) above, then, for the purposes of any written law or any rule of law-

(a) the notice shall be taken to have incorporated the offer prospectus; and

(b) any application for the shares or debentures which is made in pursuance of the notice shall be taken to have been made in pursuance of that prospectus.

(5) Where a form of application is issued without a full prospectus, neither the form of application nor any document which is issued with it shall be regarded as a prospectus for the purposes of sections 41 to 50 of the said Act of 1983 (prospectus requirements) but only, where the form of application is issued without a notice given by the Minister under subsection (2) above, for the purpose of determining the liability of persons other than the Minister.

PART VIII-POSTAL SERVICES

Interpretation

78.-(1) In this Part unless the context otherwise requires-

"mail" includes any conveyance by which postal articles are carried, any person employed in conveying postal articles and any vessel employed for the transmission of postal articles by contract or otherwise in respect of postal articles transmitted by the vessel;

"mail bag" includes a bag, box, parcel or any other envelope or covering in which postal articles in course of transmission by post are normally conveyed whether it does or does not contain any such article;

"master of any vessel" includes every person except a pilot having command or charge of a vessel;

"the Minister" means the minister responsible for Posts;

"money order" means a money order issued under this Decree or by any postal authority for payment under this Decree;

"overseas postal authority" means the postal authority of any country or place outside Fiji;

"port" includes any harbour, river, lake, roadstead and any other navigable water;

"postage" means the consideration chargeable for the transmission of postal articles by post;

"postage stamp" includes a stamp impressed by a stamping machine, and a stamp printed on a postal article as well as an adhesive stamp;

"postal article" means a letter, post-card, reply post-card, letter-card, newspaper, book, packet, printed paper, pattern or sample packet, small packet or parcel and every other packet or article when in course of transmission by post and includes a telegram when conveyed by post;

"postal authority" means the postal authority of Fiji duly appointed under section 81 below, and in relation to any country or place outside Fiji means the duly appointed postal authority of that country or place;

"postal officer" means any person engaged in the running of the postal system;

"postal order" means a postal order issued under this Decree or by any postal authority for payment under this Decree, and includes a postal note;

"postal system" means such system for the carrying on of postal business in Fiji as may from time to time provide postal services in accordance with the laws of Fiji;

"postmaster" means the person in charge of a post office;

"post office" means a post office established under section 91 below and includes any house, building, room, carriage place or structure where postal articles are accepted, sorted, delivered, made up or despatched or used for any other postal purpose or for the purpose of working a telegraph or for the acceptance, transmission or delivery of telegrams and any pillar box or other receptacle provided for the reception of postal articles for transmission;

"prescribed" means prescribed by this Decree or the subsidiary legislation made and in force under this Decree;

"regulations" means regulations made and in force under this Decree;

"sender" means the person from whom any postal article or telegram purports to have come unless that person proves that he is not the sender thereof;

"subsidiary" has the same meaning as in the Companies Act, 1983; and

"vessel" means a vessel of any description used in navigation.

Meaning of "in course of transmission by post" and "delivery to or from a post office"

79. For the purposes of this Decree-

(a) a postal article shall be deemed to be in course of transmission by post from the time of its being accepted at a post office to the time of its being delivered to the person to whom it is addressed;

(b) the delivery of a postal article of any description to a letter carrier or other person authorised to receive postal articles of that description for the post shall be a delivery to a post office;

(c) the delivery of a postal article at the premises of the person to whom the article is addressed or re-directed or to him or to his servant or agent or other person considered to be authorised to receive the article according to the usual manner of delivering the postal articles of that person or at the address specified on such article shall be deemed to be delivery to the person addressed; and

(d) delivery into a private letter box or private mail bag shall be in all respects equivalent to personal delivery to the addressee.

General duties of the Minister

80. The Minister shall have a duty to use his best endeavours to secure that there are provided throughout Fiji, save in so far as the provision thereof is impracticable or not reasonably practicable-

(a) such postal and telegram services as satisfy all reasonable demands for them;

(b) such services by means of which money may be remitted (whether by means of money orders, postal orders or otherwise) as satisfy all reasonable demands for them;

(c) in such parts of post offices as are open to the public (whether for the transaction of postal business or otherwise), such other services as may conveniently be provided there.

Appointment and duty of the postal authority

81.-(1) The Minister may by order appoint as the postal authority of Fiji such person as he thinks fit.

(2) It shall be the duty of the postal authority to run the postal system of Fiji in accordance with the terms of its appointment.

(3) The terms of an appointment made under subsection (1) may, if the Minister thinks fit not be contained in the order made under subsection (1) and such terms maybe published by the Minister in such other manner as he sees fit.

(4) No order made by the Minister under this section shall come into force before the transfer date.

General ministerial control and supervision of the postal authority

82.-(1) The Minister may after consultation with the postal authority, give to it such directions of a general character as to the exercise by it of its powers under this Part as appear to the Minister to be requisite in the national interest.

(2) If it appears to the Minister that there is a defect in the general plans or arrangements of the postal authority for exercising any of its powers under this Part, he may, after consultation with it, give it directions of a general character for remedying the defect.

(3) Without prejudice to the foregoing provisions of this section, if it appears to the Minister to be requisite or expedient so to do-

(a) in the interests of national security or relations with the government of a country or territory outside Fiji; or

(b) in order-

(i) to discharge or facilitate the discharge of, an obligation binding on Fiji by virtue of its being a member of an international organisation or a party to an international agreement;

(ii) to attain, or facilitate the attainment of, any other object the attainment of which is, in the Minister's opinion, requisite or expedient in view of Fiji being a member of such an organisation or a party to such an agreement; or

(iii) to enable Fiji to become a member of such an organisation or a party to such an agreement,

he may, after consultation with the postal authority, give to it directions requiring it (according to the circumstances of the case) to secure that a particular thing that it or a subsidiary of it is doing is no longer done or that a particular thing that it has power to do, but is not being done either by it or a subsidiary of it, is done.

(4) If it appears to the Minister that the postal authority is showing undue preference to, or is exercising undue discrimination against, any person or persons of any class of description in the charges or other terms and conditions applicable to services provided by it, being services which, by virtue of the following provisions of this Part of this Decree it has the exclusive privilege of providing, he may, after consultation with the postal authority, give it such direction as appear to him requisite to secure that it ceases so to do.

(5) The postal authority shall comply with directions given to it under any of the foregoing provisions of this section.

(6) The postal authority shall not disclose any directions given to it under any of the foregoing Provisions of this section if the Minister notifies it that he is of opinion that it is against the interests of national security to do so.

(7) In the case of a wholly owned subsidiary of the postal authority, which is engaged in or involved in anyway with any matter relating to the postal system or postal services it shall so exercise the rights conferred on it by the holding of its interest therein as to secure that no person is appointed to be a director of the subsidiary except after previous consultation with the Minister as to his suitability for appointment.

(8) The postal authority, in carrying out any such work of development in relation to its functions as postal authority of Fiji as involves substantial outlay on capital account and, if it has subsidiaries, in securing the carrying out by them of any such work, shall act in accordance with a general programme settled from time to time with the approval of the Minister.

(9) The postal authority shall furnish the Minister with such returns, accounts and other information with respect of its property and activieits [sic], and, if it has subsidiaries, with respect to their property and activities, in relation to its functions as postal authority of Fiji as he may from time to time require.

(10) Without prejudice to the provisions of the last foregoing subsection, the postal authority shall, as soon as possible after the end of each financial year, make to the Minister a report on the exercise and performance by it of its functions under this Part during that year (which shall include such particulars as the Minister may, after consultation with the postal authority and with the approval of the Minister responsible for finance, direct with respect to its activities and those of its subsidiaries so far as consisting in the manufacturing and sale of stamps in that year), and the Minister shall lay a copy of every such report before the President, and the Prime Minister and the Cabinet.

(11) The report made under the last foregoing subsection for any year shall set out any directions given under this section by the Minister to the postal authority during that year.

Power of the Minister to direct the postal authority to do work for government departments and local authorities

83.-(1) Subject to the provisions of this section, the Minister may, after consultation with the postal authority, give to it a direction that it shall do, for the Government of Fiji, work of such a description as maybe specified in the direction, being work consisting in the effecting of transactions in normal business hours in such parts of post offices as are open to the public during those hours for the transaction of postal business.

(2) Subject to the provisions of this section, the Minister may, after consultation with the postal authority, give to it a direction that it shall, in normal business hours, issue, on behalf of a local authority in Fiji specified in the direction, licences of the kinds as may be specified in the direction but so that no direction shall be given under this subsection with reference to a local authority except at its request.

(3) The postal authority shall comply with a direction given to it under subsection (1) or (2) above.

(4) In the event of a dispute arising as to the places at which, days on which or periods during which work is to be done in compliance with a direction given under subsection (1) above or licences are to be issued in compliance with a direction given under subsection (2) above, it shall be determined by the Minister.

(5) The Minister shall not give a direction under subsection (1) or (2) above or proceed to a determination under the last foregoing subsection except after taking into consideration the administrative arrangements of the postal authority for the time being in a force and the facilities available to it for the time being for doing the work in question or, as the case may be, issuing the licences in question and for exercising and performing its other functions.

(6) In consideration of its complying with a direction given under subsection (1) above, the postal authority shall be entitled to receive payment (of an amount to be determined, in the event of a dispute arising as to the amount thereof, by the Minister), and the direction may include provision as to the person by whom the payment is to be made and the manner in which it is to be defrayed.

(7) In consideration of its complying with a direction given under subsection (2) above with reference to a local authority, the postal authority shall be entitled to receive payment from that authority (of an amount to be determined, in the event of a dispute arising as to the amount there, by the Minister).

(8) No direction shall be given under this section requiring the postal authority to do anything before the transfer date.

Power to make grants and loans to the postal authority

84. The Minister responsible for finance may, at the request of the Minister, make grants or loans to the postal authority-

(a) for the purpose of establishing, developing, working and maintaining postal services and post offices in Fiji, in particular in a rural area or in rural areas;

(b) for the purpose of facilitating the compliance by the postal authority with any order given under section 82 or 83 above; or section 87(3) below;

(c) for defraying or contributing towards any expenses or losses incurred by the postal authority in respect of such matters.

Sole authority to convey etc. letters

85.-(1) As from the transfer date-

(a) the exclusive privilege of conveying letters from one place to another, whether by land, sea or air, conferred upon the Permanent Secretary for Posts and Telecommunications acting by himself or by the officers of the post office and of performing all the incidental services of receiving, collecting, sending, despatching and delivering letters shall cease to exist; and

(b) the postal authority shall have throughout Fiji the sole authority to convey letters from one place to another and to perform all the incidental services of accepting, receiving, collecting and delivering letters.

(2) In this section and section 88 below-

"correspondent" in relation to a letter or other communication, means the sender or the addressee;

"employee", in relation to a body corporate, includes any officer or director of the body corporate and any other person taking part in its management, and "employer" and other cognate expressions shall be construed accordingly;

"letter" means any communication in written form which-

(a) is directed to a specific person or address;

(b) relates to the personal, private or business affairs of, or the business affairs of the employer of, either correspondent; and

(c) neither is to be nor has been transmitted by means of a telecommunication system, and includes a packet containing any such communication;

"sender", in relation to any letter or other communication, means the person whose communication it is.

(3) References in this Part to services which, by virtue of the provisions of this Part, the postal authority has the sole authority of providing are references to services the provision of which by a person other than the postal authority would necessarily infringe the sole authority conferred by subsection (1) (b) above; and for this purpose licences granted under section 90 below shall be disregarded.

Suspension of the sole authority

86.-(1) The Minister may, after consultation with the postal authority, by order suspend the sole authority conferred on it by section 85(1) (b) above for such a period and to such extent as may be specified in the order.

(2) For the purposes of an order made under this section, any definition of a class of letters may be framed by reference to any circumstances whatever; and in this subsection "letter" has the same meaning as in section 85(2) above.

(3) An order under this section may contain such supplementary, incidental and consequential provisions as may appear to the Minister to be necessary or expedient.

Minister's powers in regard to the postal authority's charges

87.-(1) The postal authority shall, within six months of the transfer date, publish and make available to persons interested therein a list of its charges for the postal goods and services which it supplies and renders.

(2) Such charges shall not thereafter-

(a) be increased more than once in each period of twelve months without the Minister's written approval; or

(b) be increased on any such occasion by a percentage greater than that which has been recorded by the Bureau of Statistics of the Government as being the rate of inflation of consumer prices in Fiji in the period of twelve months immediately preceding the date which is three months before that on which the proposed increases are to come into effect, without the Minister's written approval;

and the postal authority shall make public details of any such increases prior to the date on which they are to come into effect, and within one month of the said date make available to persons interested a revised list of its charges.

General classes of acts not infringing the sole authority

88.-(1) The sole authority conferred on the postal authority by section 85(1)(b) is not infringed by-

(a) the conveyance and delivery of a letter personally by the sender;

(b) the conveyance and delivery of a letter by a personal friend of the sender;

(c) the conveyance and delivery of a letter by a messenger sent for the purpose by either correspondent, the messenger being a single individual;

(d) the conveyance of an overseas letter to an aircraft by a messenger sent for the purpose by the sender and the conveyance of that letter out of Fiji by means of that aircraft;

(e) the conveyance and delivery of any document issuing out of a court of justice or of any return or answer thereto;

(f) the conveyance of letters from merchants who are the owners of a merchant ship or commercial aircraft, or of goods carried in such a ship or aircraft, by means of that ship or aircraft, and the delivery thereof to the addressees by any person employed for the purpose by those merchants, so however that no payment or reward profit or advantage whatever is given or received for the conveyance or delivery of those letters;

(g) the conveyance and delivery of letters by any person, being letters concerning and for delivery with goods carried by that person, so however that no payment or reward, profit or advantage whatever is given or received for the conveyance or delivery of those letters;

(h) the conveyance and delivery of letters to the postal authority of pre-paid letters for conveyance and delivery by it to the addressees, and the collection of letters for that purpose;

(i) the conveyance and delivery of letters by a person who has a business interest in those letters, and the collection of letters for that purpose;

(j) the conveyance and delivery of banking instruments from one bank to another or from a bank to a government department, and the collection of such instruments for that purpose;

(k) the conveyance and delivery of letters and the performance of all the incidental services of accepting, receiving and collecting letters by any person for not less than three times as much as the postal authority would have charged for such services if the letters had been accepted, received or collected by it instead of by that person.

(2) Nothing in paragraphs (a) to (h) of subsection (1) shall authorise any person to make a collection of letters for the purpose of their being conveyed in any manner authorised by those paragraphs.

(3) For the purposes of paragraph (i) of subsection (1) a person has a business interest in a letter if, and only if-

(a) he is an employee of one of the correspondents or of a member of the same group as one of the correspondents and the letter relates to the business affairs of that correspondent; or

(b) he and one of the correspondents are employees of the same person or of different members of the same group and the letter relates to the business affairs of that person or, as the case maybe, the employer of that correspondent.

(4) In this section-

"bank" means-

(a) the Reserve Bank of Fiji;

(b) the Fiji Development Bank;

(c) the National Bank of Fiji;

(d) a recognised bank or licensed institution within the meaning of the Banking Act (Cap. 212);

"banking instrument" means-

(a) any cheque or other instrument to which the Bills of Exchange Act (Cap. 227) applies;

(b) any document issued by a public officer which is intended to enable a person to obtain payment from a government department of the sum mentioned in the document;

(c) any bill of exchange not falling within paragraph (a) or (b) or any promissory note;

(d) any postal order or money order;

(e) any credit transfer, credit advice or debit advice; or

(f) any list of items, or any copy of an item, falling within the foregoing paragraphs;

"government department" includes any Minister and any Permanent Secretary;

"group" means a body corporate and all of its wholly owned subsidiaries taken together,

"overseas letter" means a letter which is directed to a specific person or address outside Fiji;

"pre-paid letter" includes any letter which, in pursuance of arrangements made with the postal authority, does not require to be pre-paid;

"ship" includes any boat, vessel or hovercraft.

No letters to be conveyed except by post

89. No letters unless exempt by law shall be conveyed into or out of Fiji from or to any place between which and Fiji postal communications are established or be delivered or be distributed in Fiji otherwise than in accordance with this Decree.

Savings for things done under a licence

90.-(1) A licence may be granted by the Minister after consultation with the postal authority, either unconditionally or subject to any conditions specified in the licence, and either irrevocably or subject to revocation as therein specified, for the doing of any such act or the performance of any such service falling within section 85(1)(b) above as is specified in the licence; and anything done under and in accordance with a licence granted under this subsection shall not constitute an infringement of a sole authority conferred by that section.

(2) A licence granted under subsection (1) shall, unless previously revoked in accordance with any term in that behalf contained in the licence, continue in force for such period as may be specified therein.

(3) A licence granted under subsection (1) may be granted either to persons of a class or to a particular person, and may include (without prejudice to the power to impose conditions conferred by that subsection) conditions requiring the rendering to the Minister or the postal authority or both of a payment on the Minister or the postal authority or both of a payment on the grant of the licence or periodic payments during the currency of the licence or both.

(4) A payment required by virtue of this section to be rendered to any person may be recovered by that person in any court of competent jurisdiction as if it were a simple contract debt.

(5) A licence granted under subsection (1) to persons of a class shall be published in such manner as appears to the Minister to be appropriate for bringing it to the attention of the persons for whose benefit it will enure, and a licence expressed to be so granted shall be in writing.

(6) For the purposes of a licence granted under subsection (1) above, the definition of a class of persons may be framed by reference to any circumstances whatever.

(7) Any sums received by the Minister under this section shall be paid into the Consolidated Fund.

Establishment of post offices

91.-(1) The postal authority may establish post offices at such places as it thinks fit.

(2) The postal authority may not, without the approval of the Minister, discontinue any post office.

Postage stamps

92. The postal authority may provide postage stamps of such kinds and denoting such values as it may consider necessary or desirable to provide for the purpose of its postal business and it may cause stamped post-cards and stamped envelopes to be made but it shall refrain from issuing any postage stamps, stamped postcards and stamped envelopes or shall withdraw from sale any postage stamps, stamped postcards and stamped envelopes already issued, which the Minister directs it not to issue or to so withdraw.

Stamping machines

93.-(1) Postage may be prepaid by impressions made by stamping machines used under the direction or by the permission of the postal authority.

(2) There shall not be posted or conveyed or delivered by post any postal article-

(a) containing or bearing any counterfeit impression purporting to be made by a stamping machine used under the direction or by the permission of the postal authority; or

(b) purporting to be prepaid with any stamping machine impression which has been previously used to prepay any other postal article.

(3) No stamping machine impression which is imperfect or mutilated or defaced in any way shall, unless the postal authority otherwise decides, be used in payment of or to denote payment of postage.

(4) The postal authority may permit the use of such stamping machines as it may approve for impressing upon postal articles the sign of postage or stamp values subject to such terms and conditions as it may deem necessary.

(5) Articles bearing impressions made by stamping machines and articles intended to be impressed by stamping machines shall be accepted only at such post offices and within such hours as the postal authority shall determine.

Rates of postage

94. Subject to the provisions of this Decree there shall be paid on every postal article for transmission by post such postage and other sums as may be set by the postal authority and the postage and all fees, if any, in respect of any postal article posted within Fiji shall be prepaid by means of postage stamps issued by the postal authority not previously used, obliterated or defaced, and in default thereof there shall be payable in money at the time of delivery upon every such postal article a sum as determined by the postal authority not exceeding an amount which is double the deficiency due thereon and the sum so paid shall be indicated on every such article in a duly authorised manner:

Provided that any newspaper upon which the postage is wholly unpaid at the time of posting may be forthwith destroyed or otherwise disposed of as the postal authority may direct.

Exemptions from postage

95. All petitions and addresses to the President and all petitions to the Cabinet and Parliament shall be exempt from postage.

Liability for payment of postage

96.- (1) The person to whom any postal article is tendered for delivery on which postage or any other sum is due shall be bound to pay the postage or other sum due on his accepting delivery of the postal article unless he forthwith returns it unopened.

(2) If any postal article on which postage or any other sum chargeable is due is refused or returned as aforesaid or if the addressee is dead or cannot be found then the sender shall be bound to pay the postage or sum due thereon.

Power to withhold unstamped postal article

97. If any person refused to pay any postage or other sum which he is legally bound to pay in respect of any postal article, the postal authority or any person in charge of a post office may withhold from the person so refusing any such postal article addressed to that person, until such postage has been paid.

Post office mark evidence of refusal

98. In every proceeding for the recovery of any postage or other sum alleged to be due under this Decree in respect of a postal article the production of a postal article having thereon the official mark of the postal authority denoting that the article has been refused or that the addressee is dead or cannot be found shall be prima facie evidence of the fact so denoted.

Official mark to be evidence of postage

99. The official mark on a postal article denoting that any postage or other sum is due in respect thereof to the postal authority of Fiji or to an overseas postal authority shall be prima facie evidence that the sum denoted as aforesaid is due.

Return to sender

100. No postal article shall be returned to the writer or sender thereof without either the consent in writing of the person to whom the same is addressed or by order in writing of the person to whom the same is addressed or by order in writing of the postal authority and in neither case unless a fee as determined by the postal authority, if any, has been paid.

Registration of postal articles

101. The sender of any postal article excepting a parcel addressed to anyplace beyond Fiji may, upon payment of a fee in addition to the ordinary postage, have that article registered and obtain a receipt for the same form the postal authority, but no such registration or receipt shall confer on any person any right to compensation or otherwise or impose upon the postal authority or any person employed thereby any liability for the loss of any such article or of the contents there:

Provided that the Minister may by regulations prescribe that compensation for the loss of any registered postal article or of the contents thereof shall be payable and may impose requirements and limitations thereto.

Compulsory registration of certain postal articles

102. Every postal article containing coin, bank notes, currency notes, negotiable instruments payable to bearer, platinum, gold or silver manufactured or not, precious stones, jewels and other valuable articles shall, if posted unregistered, be liable to compulsory registration and to a consequent charge on delivery not exceeding an amount which is double the amount of any deficiency in prepayment as a registered article which may be shown thereon but upon no postal article compulsorily registered as aforesaid shall compensation be paid in case of loss.

Insurance of postal articles

103. The postal authority may provide for the insurance of postal articles subject to such terms and conditions as may be prescribed and may enter into an agreement with any postal authority for the reciprocal exchange of insured postal articles.

Parcels post

104. The Minister may in relation to any parcel post service carried on by the post authority make regulations prescribing the conditions, prohibitions and restrictions under which parcels are to be received, transmitted, delivered, returned to the senders or otherwise disposed of, and prescribing forms of statutory declarations to be made by any person or his agent desiring to transmit or receive any such parcel, and regulating the rates or fees to be charged for the return or insurance of such parcels, and prescribing the mode and manner in which such or other rates or fees payable in respect thereof may be paid and the arrangements as to the collection of any duties of customs or any duties or fees other than the rates or fees payable for transmission, delivery or insurance which may lawfully be payable in respect of any such parcel and regulating the payment to be made in respect of the carriage or conveyance of any such parcel.

Money orders and money order regulations

105.-(1) The Minister may provide for the remitting of sums of money by the postal authority through the postal system by means of money orders and may make regulations as to such money orders.

(2) In particular and without prejudice to the generality of the foregoing power such regulations may prescribe-

(a) the limit of amount for which money orders may be issued;

(b) the period during which money orders shall remain current;

(c) the rates of commission or the fees to be charged on money orders or in respect thereof; and

(d) the manner of the issue or payment and cancellation of money orders.

Power of remitter to alter name or to recall money orders

106.-(1) Subject to such conditions as the Minister may by regulations made under the provisions of section 105 prescribe in respect of the levy of additional rates of commission or fees or any other matter, a person remitting money through the postal system by means of a money order may require that the amount of the order if not paid to the payee be repaid to him or be paid to such person other than the original payee as he may direct.

(2) If neither the payee nor the remitter of a money order can be found and if within the period of twelve months after the last day of the month in which it shall have been issued no claim is made by such payee or remitter, the amount of such order shall be-forfeited to the Minister, who shall pay it into the Consolidated Fund.

Power to provide for issue of postal orders

107. The Minister may authorise the issue in such form as may be suitable of money orders to be called postal orders or by such other designation as may be deemed appropriate and made regulations as to the rates of commission to be charged thereon and the manner in which and conditions subject to which they may be issued, paid and cancelled.

Money order offices

108. The Postal Authority may from time to time determine at what post offices money orders or postal orders may be issued and paid.

Recovery of money paid to wrong persons

109. If any person without reasonable excuse, the burden of proving which shall lie on him, neglects or refuses to refund-

(a) any amount paid to him in respect of a money order or postal order by the postal authority in excess of what ought to have been paid to him in respect thereof; or

(b) the amount of a money order or postal order paid by the postal authority to him instead of to some other person to whom it ought to have been paid,

such amount shall be recoverable before a court of competent jurisdiction by the postal authority from the person so neglecting or refusing.

Exemptions from liability in respect of money orders and postal orders

110. The postal authority or any postal officer shall not incur any liability for any loss caused by-

(a) anything done under any regulation made by the Minister under section 105;

(b) the wrong payment of a money order or postal order;

(c) delay in the payment of a money order or postal order;

(d) any other irregularity in connexion with a money order or postal order,

unless the same has been caused fraudulently or by wilful act, default or negligence.

Postage stamps may be used to denote stamp duty

111.-(1) The Minister responsible for finance may by order provide for the use of postage stamps issued by the postal authority to denote the payment of any stamp duty payable under any law in respect of any instrument or class of instruments specified or described in the order.

(2) An order made under subsection (1) above may impose conditions and limitations upon the use of postage stamps for such purpose, and without limiting the generality of the foregoing, including, in particular, limitations on the amount of any stamp duty which may be denoted as having been paid in respect of any instrument.

(3) Where the Minister responsible for finance makes an order under subsection (1) above, he shall make arrangements, with the postal authority for the payment to him by the postal authority of the estimated amount of stamp duty the payment of which has been denoted by postage stamps.

(4) Where a postage stamp is used to denote the payment of any stamp duty in pursuance and in accordance with an order made under subsection (1) above, that stamp shall be conclusive evidence for all purposes of the payment of stamp duty to the value of the postage stamp.

Officers to make declaration

112. Every postal officer may before entering upon his duties be required to make and subscribe a declaration before a magistrate or a justice of the peace (which declaration every such magistrate or justice of the peace is hereby authorised and required to administer) in Form 1 in Schedule 2.

Notice of departure of vessels

113.-(1) The master or person in charge of any vessel which is about to depart from any port within Fiji shall give to the postmaster at the port from which that vessel is about to depart notice in writing of the intended time of departure and the ports of call and destination of that vessel. Such notice in case the destination of the vessel be any port outside Fiji shall be given not less than twenty four hours and in case the destination be any port within Fiji not less than six hours before the intended time of departure. Every such notice shall expire between the hours of nine o'clock in the forenoon and five o'clock in the afternoon:

Provided that shorter notice may be allowed by the Minister or the post master at the port of departure in any case or special class of cases.

(2) The postmaster who receives any such notice shall thereupon grant to the master of the vessel a certificate stating that the notice has been given and that the provisions of this Decree have been complied with, and until such certificate has been given the vessel shall not be cleared.

(3) If any vessel to which this section applies departs from a port of Fiji without the master or person in charge having given notice of the intended time of departure or if such notice having been given the vessel departs from a port within Fiji after the expiration of six hours after the time stated to be the intended time of departure in the notice given under subsection (1), the master or person in charge of such vessel, whether he has obtained a clearance or not, shall be guilty of an offence and shall be liable to a fine not exceeding five hundred dollars and in default of payment to imprisonment for a term not exceeding three months:

Provided that should the period of six hours after the time stated to be the intended time of departure of such vessel expire between the hours of five o'clock in the afternoon and nine o'clock in the forenoon it shall be lawful for such vessel to depart before nine o'clock in the forenoon immediately following the expiration of such notice.

(4) A prosecution shall not be instituted in pursuance of this section except by the direction or with the consent in writing of the Minister.

(5) Notwithstanding the other provisions of this section it shall be lawful for the Minister to exempt from all or any of the provisions of this section the master or person in charge of any vessel trading between ports within Fiji. Such exemption shall be made by written notice to the owners or to the master or person in charge of the vessel and a copy of every such notice shall be forwarded by the Minister to the Comptroller of Customs.

(6) For the purposes of this section and section 114 below, the expression "postmaster" includes any postal officer or any person duly appointed by the postal authority to perform the functions of a postmaster under this section.

Penalty for refusing to receive mail bag on board

114.-(1) If any master or person in charge of any vessel about to depart from any port in Fiji to any port or place beyond Fiji shall (after being thereto required by any postmaster or by any port officer or by any person duly authorised in that behalf) refuse or neglect to receive on board such vessel any mail bag or to give a receipt for the same being thereto required by the person tendering or delivering such mail bag or shall refuse or neglect carefully to deposit such mail bag in some secure and dry place on board of such vessel or to convey the same upon her then intended voyage, such master or person shall be guilty of an offence and shall be liable to a fine not exceeding one thousand dollars and in default of payment to imprisonment for a term not exceeding six months.

Payment for conveyance of mail bags by non-contract vessels

115.-(1) Every master or person in charge of any vessel about to depart from any port or place in Fiji to or for any other place beyond Fiji who receives on board thereof any mail bag for the purpose of conveying the same according to the direction thereof shall be entitled to demand and receive for the carriage thereof payment at rates to be from time to time prescribed by regulations.

(2) Nothing herein contained shall entitle the master or person in charge of any vessel under contract for the carriage of mail bags to receive payment for the same as aforesaid.

No payment for conveyance of mail bags already paid for at port of departure

116. No payment shall be made to the master or person in charge of any vessel arriving from any port or place beyond Fiji for the conveyance of any mail bag on which payments have already been made at the port of departure.

All mail bags and postal articles arriving by vessel to be delivered to post office by master

117. All mail bags and every loose postal article which at the time of the arrival of any vessel within any port or place in Fiji from any port or place beyond the same shall be on board thereof directed to any person in Fiji shall be delivered to the postmaster or port officer of such part or to any person duly authorised in that behalf; any person who shall knowingly or negligently detain or keep in his possession or shall neglect or refuse to deliver any mail bag or any postal article shall be guilty of an offence and shall be liable to a fine not exceeding one thousand dollars and in default of payment to imprisonment for a term not exceeding one year.

Declaration to be made by masters of vessels on arrival of vessels

118. The master or person in charge of any vessel arriving at any port or place in Fiji from any port or place beyond Fiji shall as soon as practicable after such arrival sign in the presence of the postmaster or person duly appointed to receive the same at such port or the town or place nearest thereto a declaration in Form 2 in Schedule 2 below and thereupon such postmaster or other person shall grant a certificate under his hand of the making thereof, and until such certificate shall have been delivered to the proper officer of customs at such port he shall not permit such vessel to report; and any master or person in charge as aforesaid who shall fail or refuse to make such declaration or shall make a false declaration shall be guilty of an offence and shall be liable to a fine not exceeding five hundred dollars and in default of payment to imprisonment for a term not exceeding six months.

Conveyance of mail bags by coasting vessels

119. Every master or person in charge of any coasting vessel shall receive and give a receipt for and shall deliver mail bags according to the direction thereof at the post offices of the several ports or places at which they may touch upon subject to payment at such rates and in such manner as may be prescribed; and every master or person in charge of a coasting vessel who shall refuse or neglect to receive or to give a receipt for or deliver such mail bags or shall refuse or neglect carefully to deposit and retain securely until delivery, such mail bags in some safe and dry place on board such vessel shall be guilty of an offence and shall be liable to a fine not exceeding five hundred dollars:

Provided that such master or person in charge shall not be compelled to receive or deliver such mail bags at any post office distant more than two kilometres by road from the port or place at which his vessel may touch.

Lockers to be provided by vessels and vehicles under contract

120. In all vessels or vehicles by which mail bags shall be conveyed under contract there shall be provided a suitable locker or other secure place, acceptable to the postal authority, in which such mail bags and all postal articles shall be locked up and carried apart from all other articles and things; and if such locker or place shall not so be provided or if such mail bags or any postal articles shall be carried in any such vessel or vehicle during the whole or any part of the voyage or journey otherwise than in such locker or place the master or person in charge of such vessel or vehicle shall be guilty of an offence and shall be liable to a fine not exceeding one thousand dollars and in default of payment to imprisonment for a term not exceeding three months.

Transmission of certain articles prohibited

121.-(1) Except as otherwise prescribed and subject to such conditions as are prescribed, no person shall send by post any explosive, inflammable, dangerous, filthy, noxious or deleterious substance, any sharp instrument not properly protected or any living creature which is either noxious or likely to injure the postal articles in course of transmission by post or any postal officer.

(2) No person shall send by post any article or thing which is likely to damage postal articles in course of transmission by post or injure any postal officer.

(3) Except as otherwise prescribed and subject to such conditions as are prescribed, no person shall send by post any prohibited drugs.

Transmission by post of anything indecent, etc., or articles bearing fictitious stamps prohibited

122. No person shall send by post-

(a) any indecent, obscene or seditious printing, painting, photograph, lithograph, engraving, book or card, or any other indecent, obscene or seditious article;

(b) any postal article having thereon or on the cover thereof any words, marks or designs of an indecent, obscene, seditious, scurrilous, threatening or grossly offensive character;

(c) postal articles bearing any fictitious postage or purporting to be prepaid with any postage stamp which has been previously used to prepay any other postal article or which has been previously used in payment of stamp duty;

(d) correspondence dealing with a fraudulent or immoral business or undertaking or which purports to foretell future events;

(e) any printing, painting, photograph, lithograph, engraving, book or card which may be prejudicial to the public safety or to the peace and good order of any part of Fiji.

Postal authority may detain prohibited articles

123.-(1) The postal authority may detain any postal article reasonably suspected to contain anything in contravention of the provisions of sections 121 or 122 above and may forward such postal article to the Commissioner of Police.

(2) Where any postal article has been forwarded to the said Commissioner under this section he may-

(a) in the presence of the person to whom the article is addressed; or

(b) if, after notice in writing from the Commissioner requiring his attendance left at or forwarded by post to the address on the article, the addressee fails to attend, or if the address on the article is outside Fiji, then in his absence,

open and examine the article.

(3) Where the said Commissioner opens and examines a postal article under this section, then-

(a) if he finds anything as aforesaid he may detain the article and its contents for the purpose of taking proceedings with respect thereto;

(b) if he finds no such thing, he shall either deliver the article to the addressee or, if he is absent, forward the article to him by post.

Power to detain postal articles suspected to contain dutiable goods

124.-(1) The postal authority may detain any postal article reasonably suspected to contain any goods chargeable with any customs duty which has not been paid or secured or any goods in the course of importation, exportation or removal into or out of Fiji contrary to any prohibition or restriction for the time being in force with respect thereto under or by virtue of any enactment and may forward the article to the Comptroller of Customs.

(2) Where any postal article has been forwarded to the said Comptroller under this section he may-

(a) in the presence of the person to whom the article is addressed; or

(b) if, after notice in writing from the Comptroller requiring his attendance left at or forwarded by post to the address on the article, the addressee fails to attend, or if the address on the article is outside Fiji, then in his absence,

open and examine the article.

(3) Where the said Comptroller opens and examines a postal article under this section, then-

(a) if he finds any such goods as a foresaid he may detain the article and its contents for the purpose of taking proceedings with respect thereto;

(b) if he finds no such goods, he shall either deliver the article to the addressee or, if he is absent forward the article to him by post.

Penalty for contravention of section 85

125.-(1) Any person who, except under the authority of a licence issued under section 90-

(a) conveys otherwise than by post a letter within the exclusive privilege conferred on the postal authority by the provisions of subsection (1) of section 85; or

(b) performs any service incidental to conveying otherwise than by post any letter within the exclusive privilege aforesaid; or

(c) sends or tenders or delivers in order to be sent otherwise than by post a letter within the exclusive privilege aforesaid; or

(d) makes a collection of letters excepted from the exclusive privilege aforesaid by paragraphs (a) to (h) of section 88(1) above for the purpose of sending them otherwise than by post; or

(e) carries, receives, tenders, delivers or collects letters in contravention of the provisions of section 85,

shall, in respect of each letter, be guilty of an offence and shall be liable to a fine not exceeding five hundred dollars and in default of payment to imprisonment for a term not exceeding one month.

(2) Where the affairs of a body corporate are managed by its members, this subsection shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

Penalty for contravention of sections 121 and 122

126.-(1) Any person who, in contravention of section 121 or 122 above, sends or tenders or makes, over in order to be sent by post any postal article or thing shall be liable to imprisonment for a term not exceeding one year or to a fine not exceeding one thousand dollars or to both such imprisonment and fine.

(2) The detention in the post office of any postal article on the ground of its having been sent in contravention of section 121 or 122 above shall not exempt the sender from any proceedings which might have been taken if the postal article had been delivered in due course by post.

Fraudulently issuing money orders or postal orders

127.-(1) If any postal officer grants or issues any money order or postal order with a fraudulent intent he shall be guilty of an offence and be liable to imprisonment for a term not exceeding seven years.

(2) If any postal officer re-issues a money order or postal order previously paid he shall, unless the contrary is proved, be deemed to have issued the order with a fraudulent intent under this section.

Money order or postal order to be deemed a valuable security

128.-(1) A money order or postal order shall be deemed to be an order for the payment of money and a valuable security within the meaning of this Decree and of the Penal Code and of any other law relating to forgery or stealing which is for the time being in force in Fiji.

(2) If any person with intent to defraud obliterates, adds to or alters any such lines or words on a money order or postal order or knowingly offers or utters or disposes of any money order or postal order with such fraudulent obliteration, addition or alteration, he shall be guilty of an offence and be liable to the like punishment as if the order were a cheque.

Unlawfully taking away or opening mail bag sent by vessels or vehicles employed under postal service

129. If any person unlawfully takes away or opens a mail bag sent by any vessel or vehicle employed by the postal authority for the transmission of postal articles under contract or unlawfully takes a postal article in course of transmission by post out of a mail bag so sent, he shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding fourteen years.

Receiver of stolen mail bag or postal article

130. If any person receives any mail bag or any postal article or any chattel or money or valuable security the stealing or taking or embezzling or secreting whereof amounts to an offence under this Decree knowing the same to have been stolen, taken, embezzled or secreted and to have been sent or to have been intended to be sent by post, he shall be guilty of an offence and shall be liable to the same punishment as if he had stolen, taken, embezzled or secreted the same, and may be charged and convicted whether the principal offender has or has not been previously convicted or is or is not amenable to justice.

Fraudulent detention of mail bag or postal article

131. If any person fraudulently retains or wilfully secretes or keeps or detains or when required by a postal officer neglects or refuses to deliver up-

(a) any postal article which is in course of transmission by post and which ought to have been delivered to any other person; or

(b) any postal article in course of transmission by post or any mail bag which shall have been found by him or by any other person,

he shall be guilty of an offence and be liable to a fine not exceeding one thousand dollars and to imprisonment for a term not exceeding six months.

Criminal diversion of letters from addressee

132.-(1) If any person not in the employment of the postal authority wilfully and maliciously either opens or causes to be opened any postal article to which this section applies which ought to have been delivered to another person or does any act or thing whereby the due delivery of the article to that other person is prevented or impeded he shall be guilty of an offence and be liable to a fine not exceeding five hundred dollars or to imprisonment for a term not exceeding six months.

(2) This section applies to any postal article in course of transmission by post;

(3) Nothing in this section shall apply to a person who does any act to which this section applies where he is a parent or in the position of parent or guardian of the person to whom the article is addressed.

Opening or delaying postal articles

133.-(1) Subject to subsection (2) of this section if any postal officer contrary to his duty opens or procures or suffers to be opened any postal article in the course of transmission by post or wilfully detains or delays or procures or suffers to be detained or delayed any such article he shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding one year or to a fine not exceeding one thousand dollars or to both such imprisonment and fine.

(2) Nothing in this section shall extend to the opening, detaining or delaying of a postal article returned for want of a true direction or returned by reason that the person to whom the same is directed is dead or cannot be found or shall have refused the same or shall have refused or neglected to pay the postage thereof or to the opening or detaining or delaying of a postal article under the authority of this Decree.

Delaying mail, etc

134. Any postal officer, postmaster, port-officer, master of a vessel or person duly authorised to receive or despatch any mail bag or any postal article who neglects or fails to despatch or retards the despatch thereof by post shall be guilty of an offence and shall be liable to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding twelve months or to both such fine and imprisonment.

Prohibition of placing injurious substances in or against post office letter boxes

135. Any person who destroys or damages or attempts to destroy or damage or to do any act-likely to injure any letter box belonging to the postal authority or the appurtenances or contents of any such box, shall be guilty of an offence and be liable on conviction to a fine not exceeding one thousand dollars or imprisonment for a period not exceeding twelve months or to both such fine and imprisonment

Prohibition of affixing placards, notices, etc., on post office letter boxes, etc.

136. Any person who without due authority affixes or attempts to affix any placard, advertisement, notice, list document, board or thing in or on, or paint or tar, any post office, post office letter box, telegraph post or other property belonging to or used by or on behalf of the postal authority, or in any way to disfigure any such office, box, post or property, shall be liable to a fine not exceeding one hundred dollars and in default of payment to imprisonment for a term not exceeding one month.

Prohibition of imitation of post office stamps, envelopes, forms and marks

137. Any person who without due authority-

(a) makes, issues, or sends by post or otherwise any envelope, wrapper, card, form or paper in imitation of one issued by or under the authority of the postal authority of Fiji or of any overseas postal authority or having thereon any words, letters or marks which signify or imply or may reasonably lead the recipient to believe that a postal article bearing them is sent on the Government's service; or

(b) makes on any envelope, wrapper, card, form or paper for the purpose of being issued or sent by post or otherwise, or otherwise used, any mark in imitation of or similar to or purporting to be any stamp or mark of any post office under the postal authority of Fiji or any overseas postal authority or any words, letters or marks which signify or imply or may reasonably lead the recipient thereof to believe that a postal article bearing them is sent on the Government's service; or

(c) issues or sends by post or otherwise any envelope, wrapper, card, form or paper so marked,

shall be liable to a fine not exceeding one thousand dollars.

Prohibition of fictitious stamps

138.-(1) A person shall not knowingly use for the purpose of the postal service any fictitious stamp.

(2) Subject to anything to the contrary as maybe prescribed by regulations made under this Decree it shall be unlawful for a person to make, utter, deal in, sell or have in his possession a fictitious stamp or make or have in his possession a die, plate, instrument or materials for making such a stamp.

(3) If any person acts in contravention of this section he shall be liable on conviction to a fine not exceeding one thousand dollars.

(4) Any stamp, die, plate, instrument or materials found in the possession of any person in contravention of this section may be seized and shall on conviction of such person be forfeited.

(5) For the purposes of this section "fictitious stamp" shall mean any facsimile, imitation or representation, whether on paper or otherwise, of any stamp for the time being authorised or required to be used for the purpose of the postal service or of any stamp for denoting a current rate of postage of any country or territory outside Fiji.

Prohibition of false notice as to reception of letters

139.-(1) A person shall not without authority form the postal authority place or maintain in or on any house, wall, door, window, box, post, pillar or other place belonging to him or under his control any of the words, letters or marks following, that is to say:

(a) the words "post office" or "postal telegraph office"; or

(b) the words "letter box" accompanied with words, letters or marks which signify or imply or may reasonably lead the public to believe that it is a post office letter box; or

(c) any words, letters or marks which signify or imply or may reasonably lead the public to believe that any house or place is a post office or that any box is a post office letter box,

and every person when required by a notice given by the postal authority to remove or efface any such words, letters or marks as aforesaid or to remove or effectually close up any letter box belonging to him or under his control which has been a post office letter box shall comply with the request.

(2) If any person acts in contravention of this section he shall be guilty of an offence and shall be liable to a fine not exceeding one thousand dollars and if the offence is continued after a previous conviction to a fine not exceeding fifty dollars for every day during which the offence so continues.

Obstruction of postal officers

140.-(1) Any person who wilfully obstructs or incites any other person to obstruct any postal officer in the execution of his duty or, whilst in any post office or within any premises belonging to any post office or used therewith, obstructs the course of business of the post office, shall be guilty of an offence and shall be liable to a fine not exceeding five hundred dollars.

(2) Any postal officer may require any person guilty of an offence under this section to leave a post office or any such premises as aforesaid and if the person so required refuses or fails to comply with the requirement he shall be guilty of an offence and shall be liable to a further fine not exceeding one hundred dollars and may be removed by any police officer on demand.

(3) Any person creating a disturbance on post office premises shall be guilty of an offence and shall be liable to a fine not exceeding one hundred dollars.

Obstructing mail

141. If any person wilfully obstructs or retards the conveyance or delivery of any mail he shall be guilty of an offence and shall be liable to a fine not exceeding five hundred dollars.

Falsely inducing delivery of letters

142. If any person shall, by means of any false pretence or mis-statement, induce any postmaster or other postal officer to deliver to such person any postal article sent by post and not addressed to such person he shall be guilty of an offence and shall be liable to a fine not exceeding five hundred dollars or to imprisonment for a term not exceeding six months or to both such fine and imprisonment.

Evidence of thing being postal article

143.-(1) On the prosecution of any offence under this Decree, evidence that any article is in course of transmission by post or has been accepted for transmission by post shall be sufficient evidence that the article is a postal article.

(2) Every mail bag or postal article in charge of or being carried by any postmaster or other postal officer shall in every proceeding whatsoever be deemed and taken to be sent by post unless the contrary be proved.

Provision as to form of proceedings

144. In any complaint, information or legal proceeding for any offence committed or attempted to be committed or any malicious, injurious or fraudulent act or thing done in, upon or with respect to the postal authority or revenue of the postal authority or any mail bag, postal article, money order, postal note or any chattel, money or valuable security sent by post or in anywise concerning any property under the management or control of the postal authority, it shall be sufficient to allege the property to belong to the postal authority and to allege any such act or thing to have been done with intent to injure or defraud the postal authority without in either case naming the person who is postal authority and it shall not be necessary to allege or to prove upon the trial or otherwise that the mail bag, postal article, money order, chattel, money, security or property was of any value.

Description of postal officer of the postal authority in legal proceedings

145. In any complaint, information or legal proceeding against any postal officer for any offence committed against this Decree it shall be sufficient to allege that the alleged offender was a postal officer at the time of the committing of the offence without stating further the nature or particulars of his employment.

Penalty for being in unauthorised possession of mail bags, etc.

146. Any person who without due authority is in possession of any mail bag or any other article for thing which is the property of the postal authority of Fiji or any overseas postal authority shall be guilty of an offence and shall be liable to a fine not exceeding five hundred dollars.

Article bearing a fraudulent stamp may be withheld

147.-(1) Whenever it is notified by an overseas postal authority to the postal authority of Fiji that any postal article contain or bears any fictitious postage stamp, that is to say any facsimile or imitation or representation of any stamp for denoting any rate of duty or postage or purports to be prepaid with any postal stamp which has been previously used to prepay any other postal article, or whenever any postal article containing or bearing any such fictitious postage stamp is found in the post offices of Fiji, it shall be the duty of the postal authority of Fiji to withhold the delivery of such postal article from the person to whom the same may be addressed unless such addressee or his representative consents to make known the name and address of the sender and to place at the disposal of the postal authority, after having taken cognizance of the contents, the entire postal article if it is inseparable from the offence itself or else the part of the postal article, or the envelope, wrapper or other portion of such postal article, which contains the address, if any, and the stamp so stated to be fictitious or used, and provided also that such addressee or his representative shall sign or fill up any document that may be required of him by the postal authority embodying the above information.

(2) In the event of the refusal of the addressee or his representative to comply with the above requirements, such postal article may either be sent back to the country of origin or may be dealt with or disposed of in such manner as may be authorised by the Minister.

Removing stamp from postal article

148. Any person who shall with a fraudulent intent remove from any postal article sent by post any stamp which shall have been affixed thereon or wilfully remove from any stamp which shall have been previously used any mark which shall have been made thereon at any post office or shall knowingly offer, utter or put off or use any such stamp shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding two years.

Penalty for unlawfully disclosing contents of postal article

149. Any person who reveals, discloses or in any way makes known the contents of any postal article opened under the authority of this Decree except so far as maybe necessary for the purpose of returning the same-or so far as may be authorised by the Minister in writing shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding twelve months or to a fine not exceeding one thousand dollars or to both such imprisonment and fine.

Breach of regulations

150. Any postal officer or any master of a vessel or other person employed or authorised by or under any postmaster to receive, sort, carry or deliver any mail bag or postal article sent by post or otherwise employed in the business of the postal service who shall offend against or wilfully neglect or omit to comply with any of the provisions of this Decree or with the provisions of any regulations which may be made under this Part and for which no penalty is provided shall be guilty of an offence and shall be liable to a fine not exceeding one thousand dollars and in default of payment to imprisonment for a term not exceeding six months.

Limitation of action against officer

151. If any action or suit shall be commenced against any postal officer for damages on account of anything done or omitted to be done in pursuance of this Decree, the same shall be commenced within twelve months after the act committed or omitted, and no such action shall be commenced until one month after notice thereof and of the cause thereof shall have been delivered to the defendant or left for him at his usual place of abode by the party intending to commence such action, and upon the back of such notice shall be endorsed the name and place of abode or business of the plaintiff and his attorney or agent; and the defendant in such action may plead the general issue and give the special matter in evidence, and, if it shall appear that the action was commenced after the time before' limited for bringing the same, the court shall give judgment for the defendant.

Exemption from liability for loss, misdelivery, delay or damage

152.-(1) Except as otherwise provided by or under this Decree, the Minister and the postal authority shall not incur any liability by reason of the loss, misdelivery, delay or damage to any postal article in course of transmission by post.

(2) No postal officer shall incur any liability by reason of any such loss, misdelivery, delay or damage unless such officer has knowingly caused the same fraudulently or maliciously or by his wilful act or default.

Penalty for offences not specially provided for

153. Any person who wilfully contravenes, neglects or fails to comply with any provision of this Part of this Decree of any regulation made thereunder except where otherwise provided by this Decree shall be guilty of an offence and shall be liable to a fine not exceeding five hundred dollars and in default of payment to imprisonment for a term of six months.

Regulations

154. The Minister may from time to time make regulations for the better carrying out of the provisions of this Part and without limiting the generality of the foregoing particularly for regulating-

(a) the receipt, despatch, carriage and delivery of postal articles;

(b) the general or particular conditions with which postal articles must comply;

(c) re-direction of postal articles and the transmission by post of articles so re-directed

(d) the supply, sale and use of postage stamps;

(e) the registration of postal articles;

{f) the insurance of postal articles;

(g) parcels post;

(h) the treatment of undeliverable postal articles.

PART IX-MISCELLANEOUS AND SUPPLEMENTAL

Disposal of fines

155.-(1) All fines imposed under the provisions of this Decree shall be paid into the Consolidated Fund.

(2) If a person is convicted of an offence under this Decree and the court considers that the commission of the offence caused another person to suffer pecuniary loss, the court may order the convicted person to pay the other person a specified amount of compensation for the loss.

(3) The court may make such an order whether or not it imposes a penalty for the offence.

(4) The amount ordered to be paid may be recovered in a court of competent jurisdiction as a debt due by the convicted person to that other person.

(5) Subject to any other provision of this Decree, anything is connection with which any offence against this Decree is committed may, on conviction of any person guilty of the offence, be forfeited to the State by order of the court

Directions in the interests of national security etc.

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

(2) If it appears to the Minister to be requisite or expedient to do so in the interests of national security or relations with the government of a country or territory outside Fiji, he may, after consultation with a person to whom this section applies, give to that person a direction requiring him (according to the circumstances of the case) to do, or not to do, a particular thing specified in the direction.

(3) A person to whom this section applies shall give effect to any direction given to him by the Minister under this section notwithstanding any other duty imposed on him by or under this Decree.

(4) The Minister shall lay before the President, the Prime Minister and the Cabinet a copy of every direction given under this section.

(5) A person shall not disclose, or be required by virtue of any written law or otherwise to disclose, anything done by virtue of this section if the Minister has notified him that the Minister is of the opinion that disclosure of that thing is against the interests of national security or relations with the government of a country or territory outside Fiji, or the commercial interests of some other person.

(6) The Minister may, with the approval of the Minister responsible for finance, make grants to carriers for the purpose of defraying or contributing towards any losses they may sustain by reason of compliance with the directions given under this section.

(7) There shall be paid out of public funds any sums required by the Minister for making grants under this section.

(8) This section applies to any person who is a carrier or approved contractor (whether in his capacity as such or otherwise); and in this subsection "approved contractor" means a person approved under section 13 above.

Exclusion of liability of the postal authority, the Company, its officers and servants in relation to posts and telecommunications

157.-(1) Save as otherwise provided in this Decree, no civil proceedings shall lie against the Minister, the Company or the postal authority in respect of any loss or damage suffered by any person by reason of-

(a) anything done or omitted to be done in relation to anything in the post or omission to carry out arrangements for the conveyance or collection of anything to be conveyed by post;

(b) failure to provide, or delay in providing, a telecommunication service, apparatus associated therewith or a service ancillary thereto;

(c) failure, interruption, suspension or restriction of a telecommunication service or a service ancillary thereto or delay of, or fault in, communication by means of a telecommunication service;

(d) error in, or omission from, a directory for use in connection with a telecommunication service; or

(e) transmission or conveyance by telecommunication or by post of any defamatory libel,

unless the same has been caused wilfully, fraudulently or maliciously.

(2) No officer or servant of the Company or the postal authority shall be subject, except at the suit of the Company or the postal authority, to any civil liability for any loss or damage in the cause of which liability of the Company or the postal authority therefor is excluded by the foregoing subsection.

(3) No person engaged in or about the carriage of mail or officer, servant, agent or sub-contractor of such person shall be subject except at the suit of the postal authority to any civil liability for any loss or damage in the case of which liability of the postal authority is excluded by subsection (1) of this section.

(4) Nothing in this Decree shall render the Government, the Minister or the Permanent Secretary for Posts and Telecommunications or any officer of the Department of Posts and Telecommunications subject to civil liability in respect of any matter arising before the transfer date and in respect of which, by virtue of any written law repealed by this Decree they were not so subject.

Endeavouring to procure the commission of any offence

158. Any person who solicits or endeavours to procure any other person to commit an offence punishable under this Decree shall be guilty of an offence and shall be liable to the penalty provided for in respect of that first offence.

Prohibitions and restrictions applying to lessees with respect to telecommunications

159.-(1) Subject to subsection (4) below, where any provision contained in a lease to which this section applies, or in any agreement made with respect to premises to which such a lease relates, has the effect of imposing on the lessee any prohibition or restriction with respect to any of the matters falling within subsection (3) below, that provision shall have effect in relation to things which are done-

(a) inside a building, or part of a building, occupied by the lessee under the lease, or

(b) for purposes connected with the provision to the lessee by any telecommunications operator of any telecommunication services,

as if the prohibition or restriction applied only where the lessor has not given his consent in relation to the matter in question and as if the lessor were required not to withhold that consent unreasonably.

(2) Where a provision of a lease or agreement imposes (whether by virtue of this section or otherwise) a requirement on the lessor under a lease not to withhold his consent unreasonably in relation to any matter falling within subsection (3) below, the question whether that consent is unreasonably withheld shall be determined having regard to all the circumstances and to the principle that no person should unreasonably be denied access to a telecommunication system.

(3) The matters falling within this subsection are-

(a) the running of relevant telecommunication systems;

(b) the connection of any telecommunication apparatus to a relevant telecommunication system or of relevant telecommunication systems to each other; and

(c) the installation, maintenance, adjustment, repair, alteration or use, for purposes connected with the running of a relevant telecommunication system, of any telecommunication apparatus.

(4) The Minister may by order provide, in relation to such cases, prohibitions or restrictions as are specified in the order, or are of a description so specified, that subsection (1) above shall not apply.

(5) This section applies to any lease for a term of a year or more granted on or after the day on which this section comes into force; but the Minister may by order provide that this section shall apply, subject to such transitional provisions as may be contained in the order, to leases granted before that day.

(6) In this section-

"alteration" and "telecommunication apparatus" have the same meanings as in Schedule 1 to this Decree;

"lease" includes any leasehold tenancy (whether in the nature of a head lease, sub-lease or under lease) and any agreement to grant such a tenancy, and cognate expressions and references to the grant of a lease, shall be construed accordingly;

"relevant telecommunication system" means a public telecommunication system or a telecommunication system specified for the purposes of this section in an order made by the Minister, or a telecommunication system which is, or is to be, connected to a public telecommunication system or to a system so specified.

Contributions by local authorities towards provision of facilities

160.-(1) Where a local authority considers that it would be for the benefit of the whole or any part of their area that

(a) any additional postal or telecommunication facilities should be provided; or

(b) any existing postal or telecommunication facilities should continue to be provided,

by any person, whether within or outside the area to be benefited, the authority may undertake to pay to that person any loss he may sustain by reason of the provision or continued provision of those facilities.

(2) In this section "local authority" has the meaning assigned to it by the Town Planning Act (Cap. 139).

General restrictions on disclosure of information

161.-(1) Subject to the following provisions of this section, no information with respect to any particular business which-

(a) has been obtained under or by virtue of the provisions of this Decree; and

(b) relates to the private affairs of any individual or to any particular business,

shall during the lifetime of that individual or so long as that business continues to be carried on, be disclosed without the consent of that individual or the person for the time being carrying on that business.

(2) Subsection (1) above does not apply to any disclosure of information which is made-

(a) for the purpose of facilitating the performance of any statutory functions of any Minister or a trade measurement authority;

(b) in connection with the investigation of any criminal offence or for the purposes of any criminal proceedings;

(c) for the purpose of any civil proceedings brought under or by virtue of this Decree.

(3) Nothing in subsection (1) above shall be construed-

(a) as limiting the matters which may be published under section 24 above or may be included in, or made public as part of, a report of the Minister under this Decree; or

(b) as applying to any information which has been so published or has been made public as part of such a report.

(4) Any person who discloses any information in contravention or this section shall be guilty of an offence and liable to a fine not exceeding one thousand dollars.

Minister's report

162. The Minister shall cause to be laid before the President and Prime Minister and the Cabinet before the commencement of each financial year a report on the current state and prospects of the postal and telecommunication industries in Fiji.

Offences by bodies corporate

163.-(1) Where a body corporate is guilty of an offence under this Decree and that offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part; of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, subsection (1) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of a body corporate.

Orders

164.-(1) Any order made by the Minister under this Decree shall be published in the Gazette.

(2) Any order under this Decree may make different provision with respect to different cases or descriptions of case.

(3) Any matter which under this Decree is to be prescribed by order of the Minister may be prescribed by regulations by the Minister.

General interpretation

165.-(1) Any power conferred on the Minister by this Decree to give a direction if it appears to him to be requisite or expedient to do so in the interests of national security or relations with the government of a country or territory outside Fiji includes power to give the direction if it appears to him to be requisite or expedient to do so in order-

(a) to discharge, or facilitate the discharge of, an obligation binding on the Government by virtue of it being a member of an international organisation or a party to an international agreement;

(b) to attain, or facilitate the attainment of, any other objects the attainment of which is, in the Minister's opinion, requisite or expedient in view of the Government being a member of such in organisation or a party to such an agreement; or

(c) to enable the Government to become a member of such an organisation or a party to such an agreement.

(2) For the purposes of any licence granted, approval given or order made under this Decree, any description or class may be framed by reference to any circumstances whatsoever.

Alteration of public road

166.-(1) Where in pursuance of any written law or an order made thereunder a public road is stopped up, closed, changed or diverted and immediately before the date on which the stoppage or diversion became operative there was under, in, on, over, along or across the road any telecommunication apparatus kept installed for the purposes of a telecommunications code system, the operator of that system shall have the same powers in respect of the telecommunication apparatus as if the stoppage or diversion has not become operative; but any person entitled to land over which the public road subsisted shall be entitled to require the alteration of the apparatus.

(2) Where under any such written law or order made thereunder there is proposed the improvement of a public road and, immediately before the date which the proposal became operative, there was under, in, on, over, along or across the public road any telecommunication apparatus kept installed for the purposes of a telecommunications code system, the State or the municipal authority shall be entitled to require the alteration of the apparatus.

(3) Paragraph 1(2) of the telecommunications code (alteration of apparatus to include moving, removal or replacement of apparatus) shall apply for the purposes of the preceding provisions of this section as it applies for the purposes of that code.

(4) Paragraph 17 of the telecommunications code (restriction on removal of telecommunications apparatus) shall apply in relation to any entitlement conferred by this section to require the alteration, moving or replacement of any telecommunication apparatus as it applies in relation to an entitlement to require the removal of any such apparatus.

(5) For the purposes of this section "telecommunications code system" means a telecommunications system run under a telecommunications licence to which the telecommunications code has been applied under section 9 above, and "telecommunications code" means the telecommunications code contained in Schedule 1.

Amendments, transitional provisions and repeals

167.-(1) The President may by order make such consequential modifications of any provision contained in any Act passed, or subsidiary legislation made, before the coming into force of the relevant provisions of this Decree, as appear; to him necessary or expedient in respect of-

(a) any reference in that Act or subordinate legislation to the Post Office Act (Cap. 171), the Posts and Telecommunications Trust Account Act (Cap. 172) and the Telecommunications Act (Cap. 173) or to the Department of Posts and Telecommunications or any officer of that Department; or

(b) any use in that Act or subsidiary legislation of different terminology to that used in this Decree, in particular, the telecommunications code contained in Schedule 1 to this Decree.

(2) The President may by order repeal or amend any written law which appears to him to be unnecessary having regard to the provisions of this Decree or to be inconsistent with any provision of this Decree or which appears to him to be spent or no longer of practical utility.

(3) The general transitional provisions and savings contained in Part 1 of Schedule 3 to this Decree shall have effect on the appointed day and those contained in Part 11 on the transfer date; but those provisions and savings are without prejudice to sections 15,16 and 19 of the Interpretation Act (Cap. 7) (effect of repeals).

(4) If it appears to the Minister requisite or expedient to do so in order to secure that telecommunication services provided before the appointed day by means of any existing apparatus continue to be available after the appointed day, he may by order make provision with respect to the terms on which existing apparatus is kept installed on any premises; and such an order may, in particular-

(a) provide for the terms of agreements in pursuance of which existing apparatus is kept installed on any premises to have effect with such modifications as may be specified in the order;

(b) impose obligations in relation to existing apparatus on persons who own or use such apparatus or who own interests in, or occupy, premises where such apparatus is kept installed; and

(c) provide, for the purposes of any provision contained in such an order by virtue of paragraph (a) or (b) above, for such questions arising under the order as are specified in the order, or are of a description so specified, to be referred to, and determined by, the Minister.

(6) The Acts mentioned in Schedule 4 to this Decree shall be repealed on the day and to the extent specified in that Schedule.

(7) In this section-

"existing apparatus" means any telecommunication apparatus (within the meaning of Schedule 1 to this Decree) which-

(a) was installed on any premises before the appointed day, and

(b) cannot, after the appointed day, be kept installed there by virtue of any right which is or may be conferred by or in accordance with the telecommunications code;

"subsidiary legislation" has the same meaning as in the Interpretation Act (Cap. 7).

Exemption from requirements of notice

168.-(1) Notwithstanding any other provision of this Decree, the Minister may without complying with the requirements of section 8 and 9 above as to publication of notices and the consideration of representations and objections-

(i) grant under section 7 above a licence to which section 8 above applies; or

(ii) apply the telecommunications code under section 9 above to a licence granted under section 7 above,

to the Company or within three months of the coming into effect of the relevant provision, to the operator of any telecommunication system which was in operation at the coming into effect of the relevant provision.

(2) Notwithstanding any other provision of this Decree the Minister may within 3 months of the commencement of section 7 above grant to the operator of any telecommunications system to which section 8 above applies a licence under section 7 above, without complying with the requirements of section 8 above as to the publication of notices and the consideration of representations or objections.

Dated this 30th day of November 1989.

PENAIA K. GANILAU
President and Commander-in-Chief

_______

SCHEDULE 1
(Section 9)

THE TELECOMMUNICATIONS CODE

Interpretation of code

1.-(1) In this code, except in so far as the context otherwise requires-

"agriculture" has the same meaning as the Town Planning Act (Cap. 139) and "agricultural" shall be construed accordingly;

"agricultural land" means land used predominantly for the purposes of agriculture;

"alter", "alteration" and "altered" shall be construed in accordance with sub-paragraph (2) below;

"footpath" means a way over which the public have a right of way whether on horseback or on foot;

"the court" means a court of competent jurisdiction but for the purposes of paragraphs 5, 6, 7 and 17 of this code means the High Court of Fiji;

"emergency works", in relation to the operator or a relevant undertaker for the purposes of paragraph 19 below, means works the execution of which at the time it is proposed to execute them is requisite in order to put an end to, or prevent, the arising of circumstances then existing or imminent which are likely to cause-

(a) danger to persons or property;

(b) the interruption of any service provided by the operator's system or as the case maybe, interference with the exercise of any functions conferred or imposed on the undertaker by or under any written law; or

(c) substantial loss to the operator or, as the case may be, the undertaker, and such other works as in all the circumstances it is reasonable to execute with those works;

"land" includes native land;

"line" shall be construed in accordance with the definition in this paragraph of telecommunication apparatus;

"owner" in relation to any native land means the native owners of such land as defined in the Native Lands Act (Cap. 133) but shall, in relation to any agreement, consent or permission required to be given under this Code, means the Native Land Trust Board acting for and behalf of the native owners of such land;

"public road" has the same meaning as in the Roads act (Cap. 175) and includes a road within the limits of any town or city constituted under the local Government Act (Cap. 125);

"the operator" means the person to whom this code is applied by a licence by virtue of subsection (1) of Section 9 of this Decree;

"the operator's system" means the telecommunication system the running of which is for the time being authorised by the licence mentioned in subsection (1) of section 9 of this Decree;

"the statutory purposes" means the purposes of establishing and running the operator's system;

"street" has the same meaning as in the Town Planning Act (Cap. 139);

"structure" does not include a building;

"telecommunication apparatus" includes any apparatus falling within the definition in section 2 of this Decree and any apparatus not so falling which is designed or adapted for use in connection with the running of a telecommunication system and, in particular-

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

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

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

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

(3) In relation to any land which, otherwise than in connection with a street on that land, is divided horizontally into different parcels, the references in this code to a place over or under the land shall have effect in relation to each parcel as not including references to any place in a different parcel.

(4) For the removal of doubt, it is hereby declared that for the purposes of this code a street includes, where the street passes over a bridge or through a tunnel, that bridge or tunnel.

Agreement required to confer right to execute works, etc.

2.-(1) The agreement in writing of the occupier for the time being on any land shall be required for conferring on the operator a right for the statutory purposes-

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

(b) to keep telecommunication apparatus installed on, under or over that land; or

(c) to enter that land to inspect any apparatus kept installed (whether on, under that land or elsewhere) for the purposes of the operator's system.

(2) A person who is the owner of the freehold estate in any land or is a lessee of any land or the owner of any native land shall not be bound by a right conferred in accordance with sub-paragraph (1) above by the occupier or owner of that land unless-

(a) he conferred the right himself as occupier of the land; or

(b) he has agreed in writing to be bound by the right; or

(c) he is for the time being treated by virtue of sub-paragraph (3) below as having so agreed; or

(d) he is bound by the right by virtue of sub-paragraph (4) below.

(3) If a right falling within sub-paragraph(1)above has been conferred by the occupier of any land for purposes connected with the provision, to the occupier from time to time of that land, of any telecommunication services and-

(a) the person conferring the right is also the owner of the freehold estate in that land or is a lessee of the land under a lease for a term of a year or more or in the case of any native land, is the owner of such land, or

(b) in a case not falling within paragraph (a) above, a person owning the freehold estate in the land or a lessee of the land under a lease for a term of a year or more or, in the case of any native land, is the owner of such land has agreed in writing that his interest in the land should be bound by the right,

then, subject to paragraph 4 below, that right shall (as well as binding the person who conferred it) have effect, at any time when the person who conferred it or a person bound by it under sub-paragraph (2) (b) or (4) of this paragraph is the occupier of the land, as if every person for the time being owning an interest in that land had agreed in writing to the right being conferred for the said purposes and, subject to its being exercised solely for those purposes, to be bound by it.

(4) in any case where a person owning an interest in land agrees in writing (whether when agreeing to the right as occupier or for the purposes of sub-paragraph (3) (b) above or otherwise) that his interest should be bound by a right falling within sub-paragraph (1) above, that right shall (except in so far as the contrary intention appears) bind the owner from time to time of that interest and also-

(a) the owner from time to time of any other interest in the land, being an interest created after the right is conferred and not having priority over the interest of which the agreement relates; and

(b) any other person who is at any time in occupation of the land and whose right to occupation of the land derives (by contract or otherwise) from a person who at the time the right to occupation was granted was bound by virtue of this sub-paragraph.

(5) A right falling within sub-paragraph (1) above shall not be exercisable except in accordance with the terms (whether as to payment or otherwise) subject to which it is conferred; and, accordingly, every person for the time being bound by such a right shall have the benefit of those terms.

(6) A variation of a right falling within sub-paragraph (1) above or of the terms on which such a right is exercisable shall be capable of binding persons who are not parties to the variation in the same way as, under sub-paragraphs (2), (3) and (4) above, such aright is capable of binding persons who are not parties to the conferring of the right.

(7) It is hereby declared that a right falling within sub-paragraph (1) above is not subject to the provisions of any written law requiring the registration of interests in, charges on or other obligations affecting land.

(8) In this paragraph and paragraphs 3 and 4 below-

(a) references to the occupier of any land shall have effect-

(i) in relation to any footpath that crosses and forms part of any agricultural land or any land which is being brought into use for agriculture, as references to the occupier of that land;

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

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

(b) "lease" includes any leasehold tenancy (whether in the nature of ahead lease, sub-lease or underlease) and any agreement to grant such a tenancy but not a mortgage by demise or sub-demise and "lessee" shall be construed accordingly.

(9) Subject to paragraphs 9 and 11(2) below, this paragraph shall not require any person to give his agreement to the exercise of any right conferred by any of paragraphs 9; 10, 11, 12 and 16 below.

Agreement required for obstructing access, etc.

3.-(1) A right conferred in accordance with paragraph 2 above or by paragraph 9, 10, or 11 below to execute any works on any land, to keep telecommunication apparatus installed on, under or over any land or to enter any land shall not be exercisable so as to interfere with or obstruct any means of entering or leaving any other land unless the occupier for the time being of the other land conferred, or is otherwise bound by, a right to interfere with or obstruct that means of entering or leaving the other land.

(2) The agreement in writing of the occupier for the time being of the other land shall be required for conferring any right for the purposes of sub-paragraph (1) above on the operator.

The references in sub-paragraph (1) above to a means of entering or leaving any land include references to any means of entering or leaving the land provided for use in emergencies.

(4) Sub-paragraphs (2) to (7) of paragraph 2 above except sub-paragraph (3) shall apply (subject to the following provisions of this code) in relation to a right falling within sub-paragraph (1) above as they apply in relation to a right falling within paragraph 2(1) above.

(5) Nothing in this paragraph shall require the person who is the occupier of, or owns any interest in, any land which is a street or to which paragraph 11 below applies to agree to the exercise of any right on any other land.

Effect of rights and compensation

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

(a) a person who, being the owner of the freehold estate in that land or a lessee of the land or in the case of native land, the owner of such land, is not for the time being bound by the right; or

(b) a person having the benefit of any covenant or agreement which has been entered into as respects the land under any written law and which, by virtue of that written law, binds or will bind persons deriving title or otherwise claiming under the covenantor or, as the case may be, a person who was a party to the agreement.

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

(3) Any duty imposed by virtue of sub-paragraph (2) above shall, to the extent that its performance involves the removal of any telecommunication apparatus from any land, be enforceable only in accordance with paragraph 17 below.

(4) Where-

(a) on a right in relation to any land being conferred or varied in accordance with paragraph 2 above, there is a depreciation in the value of any relevant interest in the land, and

(b) that depreciation is attributable to the fact that paragraph 17 below will apply to the removal from the land, when the owner for the time being of that interest becomes the occupier of the land, of any telecommunication apparatus installed in pursuance of that right,

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

(5) In sub-paragraph (4) above "relevant interest", in relation to land subject to a right conferred or varied in accordance with paragraph 2 above, means any interest in respect of which the following two conditions are satisfied at the time the right is conferred or varied, namely-

(a) the owner of the interest is not the occupier of the land but may become the occupier of the land by virtue of that interest; and

(b) the owner of the interest becomes bound by the right or variation by virtue only of paragraph 2(3) above.

(6) Any question as to the person's entitlement to compensation under sub-paragraph (4) above, or as to the amount of any compensation under that sub-paragraph, shall, in default of agreement, be referred to and determined by the court in accordance with any law for the time being in force.

(7) A claim to compensation under sub-paragraph (4) above shall be made by giving the operator notice of the claim and specifying in that notice particulars of-

(a) the land in respect of which the claim is made;

(b) the claimant's interest in the land and, so far as known to the claimant, any other interests in the land;

(c) the right or variation in respect of which the claim is made; and

(d) the amount of the compensation claimed;

and such a claim shall be capable of being made at any time before the claimant becomes the occupier of the land in question, or at any time in the period of three years beginning with that time.

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

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

Power to dispense with the need for required agreement

5.-(1) Where the operator requires any person to agree for the purposes of paragraph 2 or 3 above that any right should be conferred on the operator, or that any right should bind that person or any interest in land, the operator may give a notice to that person of the right and of the agreement that he requires.

(2) Where the period of 28 days beginning with the giving of a notice under sub-paragraph (1) above has expired without the giving of the required agreement, the operator may apply to the court for any order conferring the proposed right, or providing for it to bind any person or any interest in land, and (in either case) dispensing with the need for the agreement of the person to whom the notice was given.

(3) The court shall make an order under this paragraph if, but only if, it is satisfied that any prejudice caused by the order-

(a) is capable of being adequately compensated for by money; or

(b) is outweighed by the benefit accruing from the order to the persons whose access to a telecommunication system will be secured by the order;

and in determining the extent of the prejudice, and the weight of that benefit, the court shall have regard to all the circumstances and to the principle that no person should unreasonably be denied access to a telecommunication system.

(4). An order under this paragraph made in respect of a proposed right may, in conferring that right or providing for it to bind any person or any interest in land and in dispensing with the need for any person's agreement, direct that the right shall have effect with such modifications, be exercisable on such terms and be subject to such conditions as may be specified in the order.

(5) The terms and conditions specified by virtue of subparagraph. (4) above in an order under this paragraph, shall include such terms and conditions as appear to the court appropriate for ensuring that the least possible loss and damage is: caused by the exercise of the right in respect of which the order is made to persons who occupy, own interests in or are from time to time on the land in question.

(6) Where an order under this paragraph, for the purpose of conferring any right or making provision for a right to bind any person or any interest in land, dispenses with the need for the agreement of any person, the order shall have the same effect and incidents as the agreement of the person the need for whose agreement is dispensed with and accordingly (without prejudice to the foregoing) shall be capable of variation or release by a subsequent agreement.

Acquisition of rights in respect of apparatus already installed

6.-(1) The following provisions of this paragraph apply where the operator gives notice under paragraph 5(1) above to any person and-

(a) that notice requires that person's agreement in respect of a right which is to be exercisable (in whole or in part) in relation to telecommunication apparatus already kept installed on, under or over the land in question, and

(b) that person is entitled to require the removal of that apparatus but, by virtue of paragraph 17 below, is not entitled to enforce its removal.

(2) The court may, on the application of the operator, confer on the operator such temporary rights as appear to the court reasonably necessary for securing that, pending the determination of any proceedings under paragraph 5 above or paragraph 17 below, the service provided by the operator's system is maintained and the apparatus properly adjusted and kept in repair.

(3) In any case where it is shown that a person with an interest in the land was entitled to require the removal of the apparatus immediately after it was installed, the court shall, in determining for the purposes of paragraph 5 above whether the apparatus should continue to be kept installed on, under or over the land, disregard the fact that the apparatus has already been installed there.

Court to fix financial terms where agreement dispensed with

7.-(1) The terms and conditions specified by virtue of subparagraph (4) of paragraph 5 above in an order under that paragraph dispensing with the need for a persons agreement, shall include-

(a) such terms with respect to the payment of consideration in respect of the giving of the agreement; or the exercise of the rights to which the order relates, as it appears to the court would have been fair and reasonable if the agreement had been given willingly and subject to the other provisions of the order; and

(b) such terms as appear to the court appropriate for ensuring that that person and persons from time to time bound by virtue of paragraph 2(4) above by the rights to which the order relates are adequately compensated (whether by the payment of such consideration or otherwise) for any loss or damage sustained by them in consequence of the exercise of those rights.

(2) In determining what terms should be specified in an order under paragraph 5 above for requiring an amount to be paid to any person in respect of-

(a) the provisions of that order conferring any right or providing for any right to bind any person or any interest in land; or

(b) the exercise of any right to which the order relates, the court shall take into account the prejudicial effect (if any) of the order or, as the case may be, of the exercise of the right on that person's enjoyment of, or on any interest of his in, land other than the land in relation to which the right is conferred.

(3) In determining what terms should be specified in an order under paragraph 5 above for requiring an amount to be paid to any person, the court shall, in a case where the order is made in consequence of an application made in connection with proceedings under paragraph 17 below, take into account to such extent as it thinks fit, any period during which that person-

(a) was entitled to require the removal of any telecommunication apparatus from the land in question; but

(b) by virtue of paragraph 17 below, was not entitled to enforce its removal,

but where the court takes any such period into account, it may also take into account any compensation paid under paragraph 4(4) above.

(4) The terms specified by virtue of sub-paragraph (1) above in an order under paragraph 5 above may provide-

(a) for the making of payments from time to time to such persons as may be determined under those terms; and

(b) for questions arising in consequence of those terms (whether as to the amount of any loss or damage caused by the exercise of a right or otherwise) to be referred to arbitration or to be determined in such other manner as may be specified in the order.

(5) The court may, if it thinks fit-

(a) where the amount of any sum required to be paid by virtue of terms specified in an order under paragraph 5 above has been determined, require the whole or any part of any such sum to be paid into court;

(b) pending the determination of the amount of any such sum, order the payment into court of such amount on account as the court thinks fit.

(6) Where terms specified in an order under paragraph 5 above require the payment of any sum to a person who cannot be found or ascertained, that sum shall be paid into court.

Notices and applications by potential subscribers

8.-(1) Where-

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

(b) the operator has not given a notice or (if he has given a notice) has not made an application in respect of that right under paragraph 5 above,

the potential subscriber may at any time give a notice to the operator requiring him to give a notice or make an application under paragraph 5 in respect of that right.

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

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

(4) The court may, on an application made by virtue of sub-paragraph (3) above, give such directions as it thinks fit-

(a) with respect to the separate participation of the operator in the proceedings to which the application gives rise; and

(b) requiring the operator to provide information to the court.

(5) A covenant, condition or agreement which would have the effect of preventing or restricting the taking by any person as a potential subscriber of any step under this paragraph shall be void to the extent that it would have that effect.

(6) Nothing in this paragraph shall be construed as requiring the operator to reimburse the potential subscriber for any costs incurred by the potential subscriber in or in connection with the taking of any step under this paragraph on the operator's behalf.

Road works

9.-(1) The operator shall for the statutory purposes have the right to do any of the following things, that is to say-

(a) install telecommunication apparatus, or keep telecommunication apparatus installed, under, over, along or across a street;

(b) inspect, maintain, adjust or alter any telecommunication apparatus so installed; and

(c) execute any works requisite for or incidental to the purposes of any works falling within paragraph (a) or (b) above:

Provided that for those purposes the following kinds of works, that is to say-

(i) breaking up or opening a street;

(ii) tunnelling or boring under a street; and

(iii) breaking up or opening a sewer drain or tunnel,

shall only be executed with the agreement required by paragraph 2 above or an order of the court under paragraph 5 above dispensing with the need for that agreement.

(2) This paragraph has effect subject to paragraph 3 above and the following provisions of this code, and the rights conferred by this paragraph shall not be exercisable in a street which is not a public road without either the agreement required by paragraph 2 above or an order of the court under paragraph 5 above dispensing with the need for that agreement.

Power to fly lines

10.-(1) Subject to paragraph 3 above and the following provisions of this code, where any telecommunication apparatus is kept installed on or over any land for the purposes of the operator's system, the operator shall, for the statutory purposes have the right to install and keep installed lines which-

(a) pass over the land adjacent to or in the vicinity of the land on or over which that apparatus is so kept;

(b) are connected to that apparatus; and

(c) are not at any point in the course of passing over the other land less than 3 metres above the ground or within 2 metres of any building over which they pass.

(2) Nothing in sub-paragraph (1) above shall authorise the installation or keeping on or over any land of-

(a) any telecommunication apparatus used to support, carry or suspend a line installed in pursuance of that sub-paragraph; or

(b) any line which by reason of its position interferes with the carrying on of any business carried on that land.

(3) In the exercise of a right under this paragraph, the operator shall be deemed not to have acquired possession of any right over that other land.

Tidal waters, etc.

11.-(1) Subject to paragraph 3 above and the following provisions of this code, the operator shall have the right for the statutory purposes-

(a) to execute any works (including placing any buoy or seamark) on any tidal water or lands for or in connection with the installation, maintenance, adjustment, repair or alteration of telecommunication apparatus;

(b) to keep telecommunication apparatus installed on, under or over tidal water or lands; and

(c) to enter any tidal water or lands to inspect any telecommunication apparatus so installed.

(2) A right conferred by this paragraph shall not be exercised in relation to any land in which-

(a) a State interests, within the meaning of paragraph 21 below, subsists unless agreement to the exercise of the right in relation to that land has been given, in accordance with sub-paragraph (3) of that paragraph, in respect of that interest;

(b) a Ports Authority of Fiji interests or customary fishing right subsists without either the agreement to the exercise of the right in relation to that land required by paragraph 2 above or an order of the court under paragraph 5 above dispensing with that agreement, in respect of that interest.

(3) Before executing any works in exercise of a right conferred by this paragraph the operator shall submit a plan of the proposed works to the Minister for the Minister's approval.

(4) Sub-paragraph (3) above shall not apply to the execution of any emergency works, but as soon as practicable after commencing any emergency works on any tidal water or lands the operator shall submit a plan of those works to the Minister for the Minister's approval.

(5) As soon as reasonably practicable after a plan is submitted to him under sub-paragraph (3) or (4) above the Minister shall, after consulting such authorities exercising functions in relation to the tidal water or lands in question as it appears to him appropriate to consult, consider whether to approve it; and, if he does approve it, he may do so subject to such modifications and conditions and on such terms as he thinks fit.

(6) The Minister shall not approve a plan submitted to him under sub-paragraph (3) or (4) above unless he is satisfied that adequate arrangements have been made for compensating any persons appearing to him to be owners of interests in the tidal water or lands in question for any loss or damage sustained by those persons in consequence of the execution of the works to which the plan relates.

(7) If-

(a) the operator executes any works in exercise of a right conferred by this paragraph, but

(b) those works are executed otherwise than in accordance with a plan approved by the Minister (including, in the case of emergency works, where works already commenced are not approved) or a condition on which any approval of the Minister is given is or has been contravened,

the Minister may be notice require the operator to execute such remedial works (including, where appropriate, replenishment of marine, plant or animal life) as the Minister thinks appropriate having regard to the terms and conditions of any approval that he has given and, if those works are not executed in accordance with the notice, may execute them himself at the operator's expense.

(8) Where, as the result-

(a) of the failure of the operator reasonably to maintain any telecommunication apparatus kept installed for the purposes of the operator's system on, under or over any tidal water or lands; or

(b) of the abandonment by the operator of any such apparatus, it appears to the Minister that any remedial works should be executed;

he may by notice require the operator to execute those works and, if those works are not executed in accordance with the notice, may execute them himself at the operator's expense.

(9) The Minister shall have power for the purposes of exercising his functions under this paragraph, and of determining whether to exercise those functions, to cause a survey or examination to be carried out, at the operator's expense, of any works or apparatus or of the site or proposed site of any works or apparatus.

(10) Where the Minister is authorised by this paragraph to do anything at the operator's expense, the expenses incurred by the Minister in or in connection with the doing of that thing shall be recoverable by the Minister from the operator in any court of competent jurisdiction.

(11) In this paragraph-

"remedial works" includes any works of repair or restoration, the alteration of any apparatus and any works to restore the site of any apparatus to its original condition;

"tidal water or lands" includes any estuary or branch of the sea, the shore below mean high water springs and the bed of any tidal water.

Compensation for injurious affection to neighbouring land, etc.

12.-(1) Where a right conferred by or in accordance with any of the preceding provisions of this code is exercised, compensation shall be payable by the operator under this paragraph in accordance with paragraph 7 above for injurious affection to neighbouring land as if that paragraph had effect in relation to the injury caused by the exercise of such a right as it has effect in relation to the execution of works on land that has been compulsorily purchased.

(2) Sub-paragraph (1) above shall not confer any entitlement to compensation on any person in respect of the exercise of a right conferred in accordance with paragraph 2 or 3 above, if that person conferred the right or is bound by it by virtue of paragraph 2(2)(b) or (d) above, but, save as aforesaid, the entitlement of any person to compensation under this paragraph shall be determined irrespective of his ownership of any interest in the land where the right is exercised.

(3) Compensation shall not be payable on any claim for compensation under this paragraph unless the amount of the compensation exceeds one hundred dollars.

Objections to overhead apparatus

13.-(1) This paragraph applies where the operator has completed the installation for the purposes of the operator's system of any telecommunication apparatus the whole or part of which is at a height of 3 metres or more above the ground.

(2) At anytime before the expiration of the period of 3 months beginning with the completion of the installation of the apparatus a person who is the occupier of or owns an interest in-

(a) any land over or on which the apparatus has been installed; or

(b) any land the enjoyment of which, or any interest in which, is, because of the nearness of the land to the land on or over which the apparatus has been installed, capable of being prejudiced by the apparatus,

may give the operator notice of objection in respect of that apparatus.

(3) No notice of objection may be given in respect of any apparatus if the apparatus-

(a) replaces any telecommunication apparatus which is not substantially different from the new apparatus; and

(b) is not in a significantly different position.

(4) Where a person has both given a notice under this paragraph and applied for compensation under any of the preceding provisions of this code, the court-

(a) may give such directions as it thinks fit for ensuring that no compensation is paid until any proceedings under this paragraph have been disposed of; and

(b) if the court makes an order under this paragraph, may provide in that order for some or all of the compensation otherwise payable under this code to that person not to be so payable, or, if the case so requires, for some or all of any compensation paid under this code to that person to be repaid to the operator.

(5) At any time after the expiration of the period of 2 months beginning with the giving of a notice of objection but before the expiration of the period of 4 months beginning with the giving of that notice, the person who gave the notice may apply to the court to have the objection upheld.

(6) Subject to sub-paragraph (7) below, the court shall uphold the objection if the apparatus appears materially to prejudice the applicant's enjoyment of, or interest in, the land in right of which the objection is made and the court is not satisfied that the only possible alterations of the apparatus-

(a) substantially increase the cost or diminish the quality of the service provided by the operator's system to persons who have, or may in future have, access to it; or

(b) involve the operator in substantial additional expenditure (disregarding any expenditure occasioned solely by the fact that any proposed alteration was not adopted originally or, as the case may be, that the apparatus has been unnecessarily installed); or

(c) give to any person a case at least as good as the applicant has to have an objection under this paragraph upheld.

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

(8) In considering the matters specified in sub-paragraph (6) above the court shall have regard to all the circumstances and to the principle that no person should unreasonably be denied access to a telecommunication system.

(9) If it upholds an objection under this paragraph the court may by order-

(a) direct the alteration of the apparatus to which the objection relates;

(b) authorise the installation (instead of the apparatus to which the objection relates), in a manner and position specified in the order, of any apparatus so specified;

(c) direct that no objection maybe made under this paragraph in respect of any apparatus the installation of which is authorised by the court.

(10) The court shall not make any order under this paragraph directing the alteration of any apparatus or authorising the installation of any apparatus unless it is satisfied either-

(a) that the operator has all such rights as it appears to the court appropriate that he should have for the purpose of making the alteration or, as the case may be, installing the apparatus; or

(b) that-

(i) he would have all those rights if the court, on an application under paragraph 5 above, dispensed with the need for the agreement of any person; and

(ii) it would be appropriate for the court, on such an application, to dispense with the need for that agreement,

and, accordingly, for the purposes of dispensing with the need for the agreement of any person to the alteration or installation of any apparatus, the court shall have the same powers as it would have if an application had been duly made under paragraph 5 above for an order dispensing with the need for that person's agreement.

(11) For the purposes of sub-paragraphs (6)(c) and (10) above, the court shall have power on an application under this paragraph to give the applicant directions for bringing the application to the notice of such other interested persons as it thinks fit.

Obligation to affix notices to overhead apparatus

14.-(1) Where the operator has for the purposes of the operator's system installed any telecommunication apparatus the whole or part of which is at a height of 3 metres or more above the ground, the operator shall, before the expiration of the period of 3 days beginning with the completion of the installation, in a secure and durable manner affix a notice-

(a) to every major item of apparatus installed; or

(b) if no major item of apparatus is installed, to the nearest major item of telecommunication apparatus to which the apparatus that is installed is directly or indirectly connected.

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

(3) If the operator contravenes the requirements of this paragraph he shall be guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars.

(4) In any proceedings for an offence under this paragraph it shall be a defence for the person charged to prove that he took all reasonable steps and exercised all due diligence to avoid committing the offence.

Tree lopping

15.-(1) Where any tree overhangs any street and, in doing so, either-

(a) obstructs or interferes with the working of any telecommunication apparatus used for the purposes of the operator's system; or

(b) will obstruct or interfere with the working of any telecommunication apparatus which is about to be installed for those purposes,

the operator may by notice to the occupier of the land on which the tree is growing require the tree to be lopped so as to prevent the obstruction or interference.

(2) If within the period of 7 days beginning with the giving of the notice by the operator, the occupier of the land on which the tree is growing gives the operator a counter-notice objecting to the lopping of the tree, the notice shall have effect only if confirmed by an order of the Minister.

(3) If at any time a notice under sub-paragraph (1) above has not been complied with the either-

(a) a period of 14 days beginning with the giving of the notice has expired without a counter notice having been given; or

(b) an order of the Minister confirming the notice has come into force;

the operator may himself cause the tree to be lopped as mentioned in sub-paragraph (1) above.

(4) Where the operator lops a tree in exercise of the power conferred by sub-paragraph (3) above he shall do so in a husband-like manner and in such a way as to cause the minimum damage to the tree.

(5) Where-

(a) a notice under sub-paragraph (1) above is complied with either without a counter-notice having been given or after the notice has been confirmed; or

(b) the operator exercises the power conferred by sub-paragraph (3) above,

the court shall, on an application made by a person who has sustained a loss or damage in consequence of the lopping of the tree or who has incurred expenses in complying with the notice, order the operator to pay that person such compensation in respect of the loss, damage or expenses as it thinks fit.

Power to require alteration of apparatus

16.-(1) Where any telecommunication apparatus is kept installed on, under or over any land for the purposes of the operator's system, any person with an interest in that land or adjacent land may (notwithstanding the terms of any agreement binding that person) by notice given to the operator require the alteration of the apparatus on the ground that the alteration is necessary to enable that person to carry out a proposed improvement of the land in which he has an interest.

(2) Where a notice is given under sub-paragraph (1) above by any person to the operator, the operator shall comply with it unless he gives a counter-notice under this sub-paragraph within the period of 28 days beginning with the giving of the notice.

(3) Where a counter-notice is given under sub-paragraph (2) above to any person, the operator shall make the required alteration only if the court on an application by that person makes an order requiring the alteration to be made.

(4) The court shall make an order under this paragraph for an alteration to be made only if, having regard to all the circumstances and the principle that no person should unreasonably be denied access to a telecommunication system, it is satisfied-

(a) that the alteration is necessary as mentioned in sub-paragraph (1) above; and

(b) that the alteration will not substantially interfere with any service provided by the operator's system.

(5) The court shall not make an order under this paragraph for the alteration of any apparatus unless it is satisfied either-

(a) that the operator has all such rights as it appears to the court appropriate that he should have for the purpose of making the alteration; or

(b) that-

(i) he would have all those rights if the court, on an application under paragraph 5 above, dispensed with the need for the agreement of any person; and

(ii) it would be appropriate for the court, on such an application, to dispense with the need for that agreement;

and, accordingly, for the purposes of dispensing with the need for the agreement of any person to the alteration of any apparatus, the court shall have the same powers as it would have if an application had been duly made under paragraph (5) above for an order dispensing with the need for that person's agreement.

(6) For the purposes of sub-paragraph (5) above, the court shall have power on an application under this paragraph to give the applicant directions for bringing the application to the notice of such other interested persons as it thinks fit.

(7) An order under this paragraph may provide for the alteration to be carried out with such modifications, on such terms and subject to such conditions as the court thinks fit, but the court shall not include any such modifications, terms or conditions in its order without the consent of the applicant, and if such consent is not given may refuse to make an order under this paragraph.

(8) An order made under this paragraph on the application of any person shall, unless the court otherwise thinks fit, require that person to reimburse the operator in respect of any expenses which the operator incurs in or in connection with the execution of any works in compliance with the order.

(9) In sub-paragraph (1) above "improvement" includes development and change of use.

Restriction on right to require the removal of apparatus

17.-(1) Where any person is for the time being entitled to require the removal of any of the operator's telecommunication apparatus from any land (whether under any written law or because that apparatus is kept on, under or over that land otherwise than in pursuance of a right binding that person or for any other reason) that person shall not be entitled to enforce the removal of the apparatus except, subject to sub-paragraph (12) below, in accordance with the following provisions of this paragraph.

(2) A person shall not, under this paragraph, be entitled to enforce the removal of any apparatus on the ground only that he is entitled to give a notice under paragraph 11, 13, or 16 above; and this paragraph is without prejudice to paragraph 19 below and to the power to enforce an order of the court under the said paragraph 11, 13, or 16.

Abandonment of apparatus

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

Undertaker's works

19.-(1) The following provisions of this paragraph apply where a relevant under taker is proposing to execute any undertaker's works which involve or are likely to involve a temporary or permanent alteration of any telecommunication apparatus kept installed on, under or over any land for the purposes of the operator's system.

(2) The relevant undertaker shall, not less than 14 days before the works are commenced, give the operator a notice specifying the nature of the undertaker's works, the alteration or likely alteration involved and the time and place at which the works will be commenced.

(3) Sub-paragraph (2) above shall not apply in relation to any emergency works of which the relevant undertaker gives the operator notice as soon as practicable after commencing the works.

(4) Where a notice has been given under sub-paragraph (2) above by a relevant undertaker to the operator, the operator may within the period of 14 days beginning with the giving of the notice give the relevant undertaker a counter-notice which may state either-

(a) that the operator intends himself to make any alteration made necessary or expedient by the proposed undertaker's works; or

(b) that he requires the undertaker in making any such alteration to do so under the supervision and to the satisfaction of the operator.

(5) Where a counter-notice given under sub-paragraph (4) above states that the operator intends himself to make any alteration-

(a) the operator shall (subject to sub-paragraph (7) below) have the right, instead of the relevant undertaker, to execute any works for the purpose of making that alteration; and

(b) any expenses incurred by the operator in or in connection with the execution of those works and the amount of any loss or damage sustained by the operator in consequences of the alteration shall be recoverable by the operator from the undertaker in any court of competent jurisdiction.

(6) Where a counter-notice given under sub-paragraph (4) above states that any alteration is to be made under the supervision and to the satisfaction of the operator-

(a) the relevant undertaker shall not make the alteration except as required by the notice or under sub-paragraph (7) below; and

(b) any expenses incurred by the operator in or in connection with the provision of that supervision and the amount of any loss or damage sustained by the operator in consequence of the alteration shall be recoverable by the operator from the undertaker in any court of competent jurisdiction.

(7) Where-

(a) no counter-notice is given under sub-paragraph (4) above; or

(b) the operator, having given a counter-notice falling within that sub-paragraph, fails within a reasonable time to make any alteration made necessary or expedient by the proposed undertaker's works or, as the case may be, unreasonably fails to provide the required supervision, the relevant undertaker may himself execute works for the purpose of making the alteration or, as the case may be, may execute such works without the supervision of the operator, but in either case the undertaker shall execute the works to the satisfaction of the operator.

(8) If the relevant undertaker or any of his agents-

(a) executes any works without the notice required by sub-paragraph (2) above having been given; or

(b) unreasonably fails to comply with any reasonable requirement of the operator under this paragraph, he shall be guilty of an offence and liable on conviction to a fine which-

(i) if the service provided by the operator's system is interrupted by the works or failure, shall not exceed five thousand dollars; and

(ii) if that service is not so interrupted, shall not exceed two thousand dollars.

(9) In this paragraph-

"relevant undertaker" means-

(a) any person (including a local authority) authorised by any Act or by any order or scheme made under or confirmed by any Act to carry on-

(i) any railway, tramway, road transport, water transport, canal, inland navigation, dock, harbour, pier or lighthouse undertaking;

(ii) any undertaking for the supply of gas or electricity; or

(iii) any undertaking for the supply of water or the disposal of sewage;

(b) any person (apart from the operator) to whom this code is applied by a licence under section 7 of this Decree; and

(c) any person to whom this paragraph is applied by any Act passed after this Decree;

"undertaker's works" means-

(a) in relation to a relevant undertaker falling within paragraph (a) of the preceding definition, any works which that undertaker is authorised to execute for the purposes of, or in connection with, the carrying on by him of the undertaking mentioned in that paragraph;

(b) in relation to a relevant undertaker falling within paragraph (b) of that definition any works which that undertaker is authorised to execute by or in accordance with any provision of this code; and

(c) in relation to a relevant undertaker falling within paragraph (c) of that definition, the works for the purposes of which this paragraph is applied to that undertaker.

(10) The application of this paragraph by virtue of paragraph (c) of each of the definitions in sub-paragraph (9) above to any person for the purposes of any works shall be without prejudice to its application by virtue of paragraph (a) of each of those definitions to that person for the purposes of any other works.

Notices under code

20.-(1) Any notice required to be given by the operator to any person for the purposes of any provision of this code must be in a form approved by the Minister as adequate for indicating to that person the effect of the notice and of so much of this code as is relevant to the notice and to the steps that may be taken by that person under this code in respect of that notice.

(2)- Any notice required to be given to any person for the purposes of any provision of this code may be given to him either by delivering it to him or by leaving it at his proper address or by post, but a notice shall not be given by post unless it is sent by registered letter or by the recorded delivery service.

(3) Any notice required to be given under this code may be given to an incorporated company or body by giving it to secretary or clerk of the company or body.

(4) For the purposes of this paragraph and of the application of this code, the proper address of any person shall be-

(a) if the person to whom the notice is to be given has furnished the person giving the notice with an address for service under this code, that address;

(b) in a case not falling within paragraph (a) above where the person to whom the notice is to be given is an incorporated company or body, the registered or principal office of the company or body; and

(c) in any other case, the last known address of the person to whom the notice is to be given.

(5) If it is not practicable, for the purposes of giving any notice under this code, after reasonable inquiries to ascertain the name and address-

(a) of the person who is for the purposes of any provision of this code the occupier of any land; or

(b) of the owner of any interest in any land,

a notice maybe given under this code by addressing it to a person by the description of "occupier" of the land (describing it) or, as the case may be "owner" of the interest (describing both the interest and the land) and by delivering it to some person on the land or, if there is no person on the land to whom it can be delivered, by affixing it, or a copy of it, to some conspicuous object on the land.

(6) In any proceedings under this code a certificate purporting to be signed by the minister and stating that a particular form or notice has been approved by him as mentioned in sub-paragraph (1) above shall be conclusive evidence of the matter certified.

Application to the State

21.-(1) This code shall apply in relation to land in which there subsists, or any material time subsisted, a State interest as it applies in relation to land in which no such interest subsists.

(2) in this paragraph "State interest" means an interest which belongs to the State.

(3) Any agreement required by this code to be given in respect of any State interest subsisting in any land shall be given by the appropriate authority and if any question arises as to what authority is the appropriate authority in relation to any land that question shall be referred to the Director of Lands, whose decision shall be final.

Savings for and exclusion of certain remedies, etc.

22.-(1) Except insofar as provision is otherwise made by virtue of this Decree, this code shall not authorise the contravention of any provision made by or under any written law passed before this Decree.

(2) The provisions of this code, except paragraphs 8(5) and 17 and sub-paragraph (1) above, shall be without prejudice to any rights or liabilities arising under any agreement to which the operator is a party.

(3) Except as provided under the preceding provisions of this code, the operator shall not be liable to compensate any person for, or be subject to any other liability in respect of, any loss or damage caused by the lawful exercise of any right conferred by or in accordance with this code.

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

Application of code to existing systems

23.-(1) Subject to the following provisions of this paragraph, references in this code to telecommunication apparatus installed on, under or over any land include references to telecommunication apparatus so installed before this code comes into force.

(2) Without prejudice to sub-paragraph (1) above, any line or other apparatus lawfully installed before this code comes into force which is this code had come into force should have been installed under this code shall (subject to sub-paragraph (6) below) be treated for the purpose of this code as if it had been so installed.

(3) Any consent or agreement given (or deemed to have been given) for the purposes of any provision of the Telecommunications Act (Cap. 173) before this code comes into force shall-

(a) have effect after this code comes into force as an agreement given for the purposes of this code; and

(b) so have effect, to any extent that is necessary for ensuring that the same persons are bound under this code as were bound by the consent or agreement, as if it were an agreement to confer a right or, as the case may require, to bind any interest in land of the person who gave (or is deemed to have given) the consent.

(4) Where by virtue of sub-paragraph (3) above any person is bound by any right, that right shall not be exercisable except on the same terms and subject to the same conditions as the right which, by virtue of the giving of the consent, was exercisable before this code comes into force; and where under any written law repealed by this Decree those terms or conditions included a requirement for the payment of compensation or required the determination of any matter by any court or person, the amount of the compensation or, as the case maybe, that matter shall be determined after the coming into force of this code in like manner as if this Decree had not been passed.

(5) A person shall not be entitled to compensation under any provision of this code if he is entitled to compensation in respect of the same matter by virtue of sub-paragraph (4) above.

(6) Neither this code nor the repeal by this Decree of any provision of the Telecommunications Act (Cap. 173) shall prejudice any rights or liabilities ( including any rights or liabilities transferred by virtue of Part VII of this Decree) which arise at any time under any agreement which was entered into before this code comes into force and relates to the installation, maintenance, adjustment, repair, alteration or inspection of any telecommunication apparatus or to keeping any such apparatus installed on, under or over any land.

(7) Any person who before the coming into force of this code has-

(a) given a notice or requisition ("the Telecommunications Act notice") under or for the purposes of any provision of the Telecommunications Act (Cap. 173) to any person; or

(b) made an application under or for the purposes of any such provision (including, in particular, an application for any matter to be referred to any court or person),

may give a notice to the person to whom the Telecommunications Act notice was given or as the case may be, to every person who is or may be a party to the proceedings resulting from the application stating that a specified step required to be taken under or for the purposes of this code, being a step equivalent to the giving of the Telecommunications Act notice or the making of the application, and any steps required to be so taken before the taking of that step should be treated as having been so taken.

(8) A notice may be given under sub-paragraph (7) above with respect to an application notwithstanding that proceedings resulting from the application have been commenced.

(9) Where a notice has been given to any person under sub-paragraph (7) above, that person may apply to the court for an order setting aside the notice on the ground that it is unreasonable in all the circumstances to treat the giving of the Telecommunications Act notice or the making of the application in question as equivalent to the taking of the steps specified in the notice under that sub-paragraph; but unless the court sets aside the notice under that sub-paragraph, the steps specified in the notice shall be treated as having been taken and any proceedings already commenced shall be continued accordingly.

(10) Where before this code comes into force anything has, in connection with the exercise by the operator of any power conferred on him by the Telecommunications Act (Cap. 173}, been done under or for the purposes of street works that thing shall, in so far as it could have been done in connection with the exercise of any power conferred by this code, have effect after this code comes into force, without any notice being given under sub-paragraph (7) above, as if it had been done in connection with the power conferred by this code.

(11) Reference in this paragraph to the coming into force of this code shall have effect as references to the time at which the code comes into force in relation to the operator.

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SCHEDULE 2-DECLARATION

Form 1 (Section 112)

I, A.B., do solemnly and sincerely declare that I will in my position as an officer of the postal authority be honest and trustworthy and fair to all persons according to the law and to the best of my knowledge; that I will not contrary to the law or to my duty communicate or divulge the contents or any postal article, telegram or official paper of any description, nor open or detain or cause or suffer to be opened or detained any postal article or any telegram, nor on any account whatsoever destroy or make away with any postal article, telegram, or official paper entrusted to my care; I will give account of any responsibility entrusted to me whenever and wherever such may be required of me.

Declared at ............... on the ............. day of ............, 19...

Before me

Magistrate/Justice of Peace

Form 2 (Section 118)

I, A.B., do solemnly declare that I have to the best of my knowledge delivered to C.D., every mail-bag, mail-box, and postal article that was on board the (name of vessel) at the time of here arrival at (name of place) except such letters as are exempted by law from such delivery.

Signed in my presence the .............. day of ......................, 19...

__________________

Postmaster/Duly appointed officer

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SCHEDULE 3-GENERAL TRANSITIONAL PROVISIONS AND SAVINGS

PART I

Provisions and savings coming into force on the Appointed Day

l.-(1) Subject to the following provisions of this paragraph, a licence granted, or having effect as if granted, by the telecommunications authority under section 4 (1) of the Telecommunications Act (Cap. 173) which is effective on the appointed day shall have effect as if granted by the Minister under section 43 of this Decree, and the provisions of this Decree shall apply accordingly.

(2) Where a licence has effect by virtue of sub-paragraph (1) above as if granted by the Minister under section 43 of this Decree-

(a) the Minister may revoke that licence at anytime before the end of the relevant period and any provision of that licence under or in accordance with which the licence may be revoked by the telecommunications authority or some other person shall be deemed to be omitted; or

(b) the licence shall expire at the end of the relevant period unless before the end of that period it has either been revoked under this paragraph or expired in accordance with its terms.

(3) Before revoking a licence under this paragraph the Minister shall give notice-

(a) stating that he proposes to revoke the licence;

(b) stating the reason why he proposes to revoke the licence; and

(c) specifying the time (not being less than 28 days from the date of the giving of the notice) within which representations or objections with respect to the proposed revocation may be made,

and shall consider any representations or objections which are fully made and not withdrawn.

(4) A notice under sub-paragraph (3) above shall be given-

(a) in the case of a licence granted to a particular person, by sending a copy of the notice to that person; and

(b) in any case, by publication of the notice in such manner as the Minister considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them.

(5) Any sums received by the Minister under this paragraph shall be paid into the Consolidated Fund.

(6) In this paragraph "the relevant period" means the period of one year beginning with the appointed day or such other period beginning with that day as the Minister may by order prescribe for the purposes of this paragraph.

2.-(1) Wherein any written law in force on the appointed day there is contained any reference to any provision of the Telecommunications Act (Cap. 173) such reference shall be construed, unless the context otherwise requires, as a reference to the corresponding provision of this Decree.

(2) Subsidiary legislation made under the Telecommunications Act (Cap. 173) which is effective immediately prior to the appointed day shall have effect as if made under this Decree, and shall be construed with such modifications as are necessary to give effect thereto.

PART II

Provisions and Savings coming into force on the transfer date

3.-(1) Wherein any written law in force on the transfer date there is contained any reference to the Department of Posts and Telecommunications, the Permanent Secretary for Posts and Telecommunications or to any officer of the Department of Posts and Telecommunications, the Post Office or the Post Master General, being a reference to any power, function or duty which by virtue of the provisions of this Decree is a power, function or other thing vested in or conferred upon some other body or person, such reference shall, unless the context otherwise requires and to the extent required to give effect to the provisions of this Decree, he construed as a reference to that other body or person.

(2) Wherein any written law in force on the appointed day there is contained any reference to any provision of the Post Office Act (Cap. 1731) such reference shall be construed unless the context otherwise requires as a reference to the corresponding provision of this Decree.

(3) Subsidiary legislation made under the Post Office Act (Cap. 171) which is effective immediately prior to the transfer date shall have effect as if made under this Decree; and shall be construed with such modifications as are necessary to give effect thereto.

4. Where immediately before the transfer date there is in force an agreement which-

(a) confers or imposes on the Department of Posts and Telecommunications any rights or liabilities which vest in the Company by virtue of Part VII of this Decree; and

(b) refers (in whatever terms and whether expressly or by implication) to a public officer employed in the Department of Posts and Telecommunications,

the agreement shall have effect, in relation to anything falling to be done on or after that date, as if for that reference there were substituted a reference to such person as the Company may appoint or, in default of appointment, to the officer of that Company who corresponds as nearly as may be to the public officer in question.

5.-(1) It shall be the duty of the Government and of the Company to take, as and when during the transitional period the Company considers appropriate, all such steps as may be requisite to secure that the vesting in the Company by virtue of Part VII of this Decree or this paragraph of any foreign property, right or liability is effective under the relevant foreign law.

(2) During the transitional period, until the vesting in the Company by virtue of Part VII of this Decree or this paragraph of any foreign property, right or liability is effective under the relevant foreign law, it shall be the duty of the Government to hold that property or right for the benefit of, or to discharge that liability on behalf of, the Company.

(3) Nothing in sub-paragraphs (1) and (2) above shall be taken as prejudicing the effect under the laws of Fiji of the vesting in the Company by virtue of Part VII of this Decree or this paragraph, of any foreign property, right or liability.

(4) The Government shall have all such powers as may be requisite for the performance of its duty under this paragraph, but-

(a) it shall be the duty of the Company during the transitional period to act behalf of the Government (so far as possible) in performing the duty imposed on Government by this paragraph; and

(b) any foreign property, rights and liabilities acquired or incurred during that period shall immediately become property, rights and liabilities of the Company.

(5) References in this paragraph to any foreign property, right or liability are references, respectively, to any property, right or liability as respects which any issue arising in any proceedings would have been determined (in accordance with the rules of private international law) by references to the law of the country or territory outside Fiji.

(6) Any expenses incurred by the Government under this paragraph shall be met by the Company.

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SCHEDULE 4-REPEALS

PART I-REPEALS COMING INTO FORCE ON THE APPOINTED DAY

The Telecommunications Act (Cap. 173):

Provided that the subsidiary legislation shall continue in force, subject to paragraph 2 of Part I of Schedule 3 above, until it is revoked or replaced by subsidiary legislation made under this Decree.

PART II-REPEALS COMING INTO FORCE ON THE TRANSFER DATE

The Posts and Telecommunications Trust Account Act (Cap. 172):

The Post Office Act (Cap. 171):

Provided that the subsidiary legislation made under the Post Office Act shall continue in force, subject to paragraph 1(1), (2) and (3) of Part II of Schedule 3 above, until it has been revoked or replaced by subsidiary legislation made under this Decree.

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