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Public Enterprises Act 2019

REPUBLIC OF FIJI


Public Enterprises Act 2019

(ACT NO. 6 OF 2019)


SECTIONS
PART 1—PRELIMINARY
1. Short title and commencement
2. Interpretation
3. Purpose
4. Application
5. Act binds the State


PART 2—PUBLIC ENTERPRISE PRINCIPLES
6. Public enterprise principles
7. Act must be applied in accordance with public enterprise principles


PART 3—ESTABLISHMENT OF PUBLIC ENTERPRISE


Division 1—Nature of public enterprise
8. Public enterprises
9. When Minister may designate entity as public enterprise
10. Constitution of a public enterprise must be consistent with this Act
11. Meaning of State control
12. State not bound by public enterprise act or transaction


Division 2—Shares and securities
13. State may acquire shares and securities issued by public enterprise
14. Restrictions on dealing with State-owned shares


Division 3—Powers and capacity
15. Powers and capacity of public enterprise


Division 4—Joint ventures and subsidiaries
16. Restrictions on joint ventures
17. Subsidiary must provide information


PART 4—PRINCIPLE OF COMMERCIAL OBJECTIVE


Division 1—Primary objective
18. Primary objective of public enterprise is to be a successful business
19. Public enterprise must give effect to statement of corporate intent


Division 2—Non-commercial obligations
20. Public enterprise may undertake non-commercial obligation
21. Requirements for non-commercial obligation agreement


PART 5—PRINCIPLE OF MEASURABLE PERFORMANCE


Division 1—Statement of corporate intent
22. Public enterprise must have statement of corporate intent
23. Content of statement of corporate intent
24. Process for approval of statement of corporate intent
25. Process for amendment of statement of corporate intent


Division 2—Business plan
26. Public enterprise must have business plan
27. Content of business plan
28. Process for approval of business plan
29. Process for amendment of business plan


PART 6—PRINCIPLE OF RESPONSIBLE MANAGEMENT


Division 1—Appointment of board of directors
30. Board of directors
31. Eligibility for appointment
32. Chairperson and deputy chairperson
33. Term of office
34. When director ceases to hold office
35. Resignation and removal
36. Defect or irregularity in appointment


Division 2—Conduct of directors and employees
37. Honesty and good faith
38. Ensuring business success
39. Due compliance
40. Avoiding insolvency
41. Improper use of position or information as director or employee
42. Disclosure of interest
43. When interest of related party counts as director's interest
44. Register of interests
45. Code of conduct
46. Content of code of conduct
47. Conduct of employees


Division 3—Management
48. Board meetings
49. Procedure at board meetings
50. Resolution in lieu of meeting
51. Chief executive officer
52. Delegations
53. Restrictions on indemnity by public enterprise for directors and executive officers
54. Restrictions on indemnity by subsidiary of public enterprise for directors and executive officers
55. Permitted indemnity of liability owed by director or executive officer to third person


PART 7—PRINCIPLE OF TRANSPARENT PERFORMANCE


Division 1—Financial transparency
56. Financial records
57. Financial statements


Division 2—Operational transparency
58. Annual report
59. Minister must table annual report in Parliament


PART 8—PRINCIPLE OF MONITORED PERFORMANCE


Division 1—Minister's oversight
60. Role of Minister
61. Resolutions of wholly-owned public enterprise are effected by Minister
62. Minister may require disclosure by public enterprise


Division 2—Public enterprise monitoring
63. Public enterprise monitoring functions
64. Public enterprise monitoring may require disclosure
65. Ministry must report on each public enterprise


PART 9—MISCELLANEOUS
66. Regulations
67. Repeal
68. Transitional provisions
69. Consequential amendments


SCHEDULE 1—PUBLIC ENTERPRISES
SCHEDULE 2—CONSEQUENTIAL AMENDMENTS
SCHEDULE 3—ENTITIES TO WHICH SECTION 69(2) APPLIES


I assent.
J. K. KONROTE
President


[16 May 2019]


AN ACT

TO PROVIDE FOR THE REGULATION AND GOVERNANCE OF PUBLIC ENTERPRISES AND FOR RELATED MATTERS

ENACTED by the Parliament of the Republic of Fiji—


PART 1—PRELIMINARY

Short title and commencement

1.—(1) This Act may be cited as the Public Enterprises Act 2019.

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

Interpretation

2. In this Act, unless the context otherwise requires—

"accounting standards" has the meaning given in section 3 of the Companies Act 2015;
"board" means the directors of a public enterprise;
"chief executive officer" means the person appointed under section 51 as the chief executive officer of a public enterprise;
"child" means a biological child, an adopted child or a stepchild who is—
"civil servant" means a person employed in the public service as defined in the Constitution of the Republic of Fiji, whether on a full-time or a part-time basis;
"company" has the meaning given in section 3 of the Companies Act 2015;
"constitution", in the case of a public enterprise that is a company, means its articles of association;
"director", in relation to a public enterprise that—
"entity" includes a statutory entity, corporation, company or other body corporate;
"executive officer" means—
"financial year" means a period that is a financial year for accounting purposes for a public enterprise;
"Minister" means the Minister responsible for public enterprises;
"Ministry" means the ministry responsible for public enterprises;
"non-commercial obligation" means the specified service or activity referred to in a non-commercial obligation agreement;
"non-commercial obligation agreement" means an agreement referred to in section 21 between the Government and a public enterprise for the undertaking of a non-commercial obligation by the public enterprise;
"primary objective" has the meaning given in section 18;
"public enterprise" has the meaning given in section 8;
"public enterprise principles" means the principles set out in section 6;
"spouse" includes a de facto partner;
"statement of corporate intent" means the statement of corporate intent required by section 22;
"subsidiary" has the meaning given in section 3 of the Companies Act 2015; and
"working day" means any day other than a Saturday, Sunday or public holiday.

Purpose

3. The purpose of this Act is to provide for the regulation and governance of public enterprises according to public enterprise principles.

Application

4.—(1) This Act applies in addition to the Companies Act 2015 and any other written law that establishes an entity that is a public enterprise but prevails in the event of any inconsistency.

(2) Anything done under this Act counts towards compliance with any other written law and anything done under any other written law counts towards compliance with this Act.

Act binds the State

5. This Act binds the State.

PART 2—PUBLIC ENTERPRISE PRINCIPLES

Public enterprise principles

6. For the purposes of this Act, the public enterprise principles are—

(a) the principle of commercial objective where a public enterprise must operate on a commercial basis that is efficient and profitable;
(b) the principle of measurable performance where a public enterprise must identify its business goals;
(c) the principle of responsible management where the management of a public enterprise must be competent, honest and accountable;
(d) the principle of transparent performance where a public enterprise must report its performance fully, publicly and in a timely manner; and
(e) the principle of monitored performance where a public enterprise must be subject to rigorous monitoring, approval and review.

Act must be applied in accordance with public enterprise principles

7.—(1) This Act must be applied in accordance with the public enterprise principles.

(2) Any person who performs any function or exercises any power under this Act must do so in a manner intended to advance the public enterprise principles.

PART 3—ESTABLISHMENT OF PUBLIC ENTERPRISE

Division 1—Nature of public enterprise

Public enterprises

8.—(1) Subject to subsection (2) and section 9(1)(b), a public enterprise is an entity controlled by the State and that is—

(a) at the commencement of this Act, specified in Schedule 1; or

(b) designated as a public enterprise under section 9(1)(a).

(2) A public enterprise must be one of the following—

(a) a company; or

(b) an entity established by a written law.

When Minister may designate entity as public enterprise

9.—(1) Subject to the approval of Cabinet, the Minister may, by notice in the Gazette—

(a) designate an entity as a public enterprise if the Minister considers that it is in the public interest that the entity is governed by the public enterprise principles; or
(b) revoke the designation of an entity as a public enterprise,

effective on the date specified in the notice.

(2) The Minister must, by the same notice referred to in subsection (1), amend Schedule 1 to reflect the designation or revocation.

Constitution of a public enterprise must be consistent with this Act

10. The constitution of a public enterprise must be consistent with this Act and is void to the extent of any inconsistency.

Meaning of State control

11. For the purposes of this Act, unless the context otherwise requires, an entity is controlled by the State—

(a) in the case of a company, if the State—
(b) in the case of an entity established by a written law that is not a company, if the State—

State not bound by public enterprise act or transaction

12. No act or transaction by a public enterprise or its subsidiary binds the State, or creates a liability on the part of the State, unless—

(a) the State agrees to be bound or liable; or
(b) the State is expressly bound or liable by a provision of any written law.

Division 2—Shares and securities

State may acquire shares and securities issued by public enterprise

13. The State may acquire shares and other securities issued by a public enterprise.

Restrictions on dealing with State-owned shares

14.—(1) A share or other security that is issued by a public enterprise and held by the State—

(a) must not be subject to a security interest; and
(b) unless approved by Cabinet, must not be subject to a trust.

(2) A security interest or trust granted or created by the State in contravention of subsection (1) is void.

Division 3—Powers and capacity

Powers and capacity of public enterprise

15. Unless otherwise provided for in this Act, any other written law or the constitution of the public enterprise, a public enterprise has full powers and capacity to do any act for the purpose of performing its functions.

Division 4—Joint ventures and subsidiaries

Restrictions on joint ventures

16. A public enterprise must not be a party to an agreement to form a joint venture that is inconsistent with this Act or the constitution of the public enterprise.

Subsidiary must provide information

17. The subsidiary of a public enterprise must provide the public enterprise with—

(a) all information and documents that are necessary or expedient for compliance by the public enterprise with its obligations under this Act in relation to the subsidiary; and
(b) any other information that the public enterprise requests in writing.

PART 4—PRINCIPLE OF COMMERCIAL OBJECTIVE

Division 1—Primary objective

Primary objective of public enterprise is to be a successful business

18.—(1) The primary objective of a public enterprise is to be a successful business.

(2) A public enterprise must conduct its business and operations with a view to being a successful business.

(3) A public enterprise is a successful business if it is at least as efficient and profitable as comparable businesses in the private sector.

(4) This section—

(a) overrides anything that may be contained in the constitution of the public enterprise or any written law that establishes an entity that is a public enterprise; and
(b) does not affect the validity or enforceability of any contract or other transaction entered into by a public enterprise.

Public enterprise must give effect to statement of corporate intent

19. A public enterprise must strive to—

(a) give effect to its statement of corporate intent; and
(b) ensure that it does not do anything that is inconsistent with its statement of corporate intent.

Division 2—Non-commercial obligations

Public enterprise may undertake non-commercial obligation

20.—(1) The Minister may propose in writing to a public enterprise that the public enterprise—

(a) provide a specified service or perform a specified activity; or
(b) cease to provide a specified service or perform a specified activity.

(2) The public enterprise must, within one month after receiving the proposal, give the Minister a notice in which the public enterprise—

(a) agrees to give effect to the proposal; or
(b) states, with reasons, that giving effect to the proposal would be inconsistent with the primary objective of the public enterprise.

(3) If the public enterprise gives the Minister a notice under subsection (2)(b), the Minister and the public enterprise must enter into good faith negotiations with a view to agree on arrangements under which the public enterprise may give effect to the Minister's proposal without acting inconsistently with its primary objective.

(4) If an agreement is reached under subsection (3), the arrangements for giving effect to the Minister's proposal are binding only if incorporated in an agreement that complies with section 21.

Requirements for non-commercial obligation agreement

21.—(1) A non-commercial obligation agreement—

(a) must be in writing;
(b) must have the prior approval of Cabinet;
(c) if it provides for the public enterprise to provide goods or services, must—
(d) must specify the funding or other resources to be provided by the State under the agreement;
(e) may include provision for funding or other resources from the State to the public enterprise; and
(f) may include any other matter, not inconsistent with this Act, that is agreed between the Government and the public enterprise.

(2) Money payable by the State under a non-commercial obligation agreement is payable out of the Consolidated Fund unless otherwise approved by the Minister responsible for finance.

(3) The obligations of the State and the public enterprise under a non-commercial obligation agreement are binding.

PART 5—PRINCIPLE OF MEASURABLE PERFORMANCE

Division 1—Statement of corporate intent

Public enterprise must have statement of corporate intent

22.—(1) A public enterprise must have, at the start of each financial year, a statement of corporate intent that specifies for the group consisting of the public enterprise and its subsidiaries if any, in respect of that financial year and the following 2 financial years, the matters set out in section 23.

(2) The statement of corporate intent must be approved by the board in accordance with section 24.

(3) The statement of corporate intent must be publicly available.

Content of statement of corporate intent

23.—(1) A statement of corporate intent must contain the following—

(a) a description of the main business of the public enterprise;
(b) a statement of the business goals of the public enterprise, demonstrating how those goals are consistent with its primary objective;
(c) a description of the nature and scope of the activities that the public enterprise intends to undertake;
(d) a statement of the strategies of the public enterprise for achieving its business goals and primary objective;
(e) a statement or summary of the targets or benchmarks that the public enterprise will use to measure its performance against its business goals and primary objective;
(f) a statement of the current or anticipated borrowing of the public enterprise;
(g) a statement of the accounting policies that the public enterprise will apply for financial records and reporting;
(h) a summary indicative balance sheet and profit and loss statement—
(i) for the public enterprise; or
(ii) if it has any subsidiaries, for the group consisting of the public enterprise and its subsidiaries;
(i) a statement of the proposed dividend and distribution policy of the public enterprise;
(j) a description of any non-commercial obligation and its impact on the forecasted financial outcomes of the public enterprise; and
(k) any other matter that the Minister directs to be included in the statement of corporate intent.

(2) Notwithstanding subsection (1), the Minister may prescribe matters which a public enterprise may exclude from its statement of corporate intent.

Process for approval of statement of corporate intent

24. The board—

(a) must give the Minister a final draft of the statement of corporate intent not less than 2 months before the start of the financial year to which it will apply;
(b) must not approve or adopt the statement of corporate intent without first taking into account any comment by the Minister in relation to the draft statement of corporate intent; and
(c) must give the Minister a copy of the statement of corporate intent within 10 working days of approving or adopting it.

Process for amendment of statement of corporate intent

25. A public enterprise may amend its statement of corporate intent at any time provided the board—

(a) must give the Minister a final draft of the amendment not less than 2 months before the board approves or adopts it;
(b) must not approve or adopt the amendment without first taking into account any comment by the Minister in relation to the draft amendment; and
(c) must give the Minister a copy of the amendment within 10 working days of approving or adopting it.

Division 2—Business plan

Public enterprise must have business plan

26.—(1) A public enterprise must have, at the start of each financial year, a business plan that applies to that financial year and to the following 2 financial years.

(2) A business plan must—

(a) contain the matters set out in section 27;
(b) be consistent with the statement of corporate intent of the public enterprise approved or adopted by the board in accordance with section 24; and
(c) be approved or adopted by the board in accordance with section 28.

Content of business plan

27.—(1) The business plan must contain information about the operations, strategic directions and financial projections of the public enterprise for the financial year and the following 2 financial years.

(2) The information required under subsection (1) must be sufficient for the Minister to conclude that the business plan demonstrates that the public enterprise will be a successful business in the financial year and the following 2 financial years.

Process for approval of business plan

28. The board—

(a) must give the Minister a final draft of the business plan not less than 2 months before the start of the financial year to which it will apply;
(b) must not approve or adopt the business plan without first taking into account any comment by the Minister in relation to the draft business plan; and
(c) must give the Minister a copy of the business plan within 10 working days of approving or adopting it.

Process for amendment of business plan

29. A public enterprise may amend its business plan at any time provided the board—

(a) must give the Minister a final draft of the amendment not less than 2 months before the board approves or adopts it;
(b) must not approve or adopt the amendment without first taking into account any comment by the Minister in relation to the draft amendment; and
(c) must give the Minister a copy of the amendment within 10 working days of approving or adopting it.

PART 6—PRINCIPLE OF RESPONSIBLE MANAGEMENT

Division 1—Appointment of board of directors

Board of directors

30.—(1) A public enterprise must have a board of directors.

(2) The board must be appointed by the Minister in writing subject to the approval of the Prime Minister.

(3) The Minister—

(a) before appointing a person as a director, must be satisfied that the person to be appointed has the skills, knowledge and experience to assist the public enterprise in achieving its primary objective; and
(b) must not appoint a person if the Minister has any reason to believe that he or she is not a fit and proper person to be appointed.

(4) In relation to any matter that is not provided for by this Act, a person appointed as a director holds office on the terms and conditions set out in his or her written appointment.

(5) The names of directors of a public enterprise must be publicly available.

Eligibility for appointment

31.—(1) A person is eligible for appointment to a board if he or she is eligible under the Companies Act 2015 to be appointed as a director of a company.

(2) A person is not eligible for appointment if—

(a) the person is a Minister or a member of Parliament;
(b) subject to section 68(2), the person is a civil servant in the ministry or department in the civil service with direct regulatory or operational responsibility for the principal business of the public enterprise;
(c) the person ceases to be eligible under the Companies Act 2015 for appointment as a director of a company;
(d) the person is convicted of an offence punishable by a term of not less than 12 months;
(e) the person is convicted of an offence involving dishonesty; or
(f) in any jurisdiction, the person is banned from acting as a director of a body corporate.

Chairperson and deputy chairperson

32.—(1) The Minister must appoint a director to be the chairperson of the board.

(2) The board must appoint a director to be the deputy chairperson of the board.

Term of office

33.—(1) Subject to sections 34 and 68(1), a director holds office for—

(a) a term of 3 years from the date of appointment; or
(b) any shorter term that is specified in the director's written appointment.

(2) A director may be reappointed.

When director ceases to hold office

34. A director ceases to hold office when he or she—

(a) has served the term of his or her appointment;
(b) resigns in accordance with section 35(1);
(c) is removed by the Minister in accordance with section 35(2); or
(d) ceases to be eligible for appointment to the board.

Resignation and removal

35.—(1) A director may resign by giving written notice to the Minister.

(2) The Minister may, subject to the approval of the Prime Minister, at any time and for any reason, remove a director by giving that director written notice of removal.

Defect or irregularity in appointment

36. Anything done by or in relation to a person purporting to act under an appointment to the board is not invalid merely because—

(a) the occasion for the appointment had not arisen;
(b) there was a defect or irregularity in relation to the appointment;
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.

Division 2—Conduct of directors and employees

Honesty and good faith

37. A director, in discharging or exercising functions, duties and powers as a director, must—

(a) act honestly;
(b) act in good faith and for a proper purpose;
(c) act with reasonable care and diligence; and
(d) comply with the code of conduct of the public enterprise.

Ensuring business success

38. A director must take all reasonable steps to ensure that the public enterprise achieves its primary objective.

Due compliance

39. A director must take all reasonable steps to ensure that the public enterprise complies with—

(a) any applicable written law; and
(b) its constitution.

Avoiding insolvency

40.—(1) A director must take all reasonable steps to ensure that the public enterprise does not incur a debt if incurring the debt—

(a) results in the public enterprise becoming unable to pay all its debts as and when they become due and payable; or
(b) creates or is likely to create a substantial risk that the public enterprise will be unable to pay all its debts as and when they become due and payable.

(2) In this section, "debt" includes a contingent financial obligation such as a guarantee.

Improper use of position or information as director or employee

41.—(1) A director or employee of a public enterprise must not improperly use—

(a) his or her position as a director or an employee; or
(b) information obtained as a result of that position.

(2) Improper use of position or information includes using that position or information to—

(a) gain a personal advantage or an advantage for another person; or
(b) cause detriment to the public enterprise or another person.

(3) The prohibition in subsection (1) on improper use of position or information continues after a person ceases to be a director or employee of a public enterprise.

(4) A person who contravenes subsection (1), or is party to a contravention of subsection (1) is liable to compensate the public enterprise for any loss it suffers as a result of the contravention.

(5) In this section, "advantage" and "detriment" are not limited to financial advantage or detriment.

Disclosure of interest

42.—(1) A director must disclose to the board any interest of the director, including the interest of a related party as set out in section 43, that may conflict with the proper performance of his or her duties and functions as a director of the public enterprise.

(2) A director must disclose the interest as soon as he or she becomes aware of it.

(3) A director must not act as a director or vote in relation to any matter in which he or she has an interest unless—

(a) the director has disclosed the interest to the board; and
(b) subject to any applicable written law, the board has consented to the director acting or voting.

(4) For the purposes of this section, it does not matter—

(a) whether an interest is direct, indirect, pecuniary or non-pecuniary; or
(b) when the interest was acquired.

When interest of related party counts as director's interest

43.—(1) For the purpose of section 42(1), a director is taken to have the interest that a related party has.

(2) In relation to a director, a related party is any of the following—

(a) a director's spouse or child;
(b) a corporation or company (other than the public enterprise) of which the director is also a director or executive officer;
(c) a subsidiary of a corporation or company (other than the public enterprise) of which the director is a director or executive officer;
(d) a corporation or company of which the director's spouse or child is a director or executive officer;
(e) a corporation or company of which the director or the director's spouse or child owns or controls the exercise of votes attached to shares that together exceed the prescribed percentage of the shares of the corporation or company;
(f) a person who, with the director, is a party to a contract, arrangement or understanding, whether formal or informal, written or verbal, enforceable or unenforceable for—

Register of interests

44. A public enterprise must maintain a register that records all disclosures of interests made by a director or employee of the public enterprise under section 42 or 47.

Code of conduct

45.—(1) The board must—

(a) establish and approve a code of conduct governing the directors and employees of the public enterprise; and
(b) at least once every 3 years, review the content and operation of the code of conduct.

(2) The code of conduct must—

(a) provide for the matters set out in section 46; and
(b) be consistent with this Act and any other written law.

Content of code of conduct

46. A code of conduct for a public enterprise must provide inter alia for the following matters—

(a) standards of conduct for directors and employees;
(b) active promotion of ethical behaviour and facilitation of reporting of unlawful or unethical behaviour;
(c) circumstances in which directors and employees may accept gifts and other benefits, including reporting and recording those gifts and benefits;
(d) use by directors and employees of the resources of the public enterprise, including phones, vehicles and other property;
(e) regulation of business travel, including its cross-over with personal travel;
(f) regulation of conflicts of interest, including procedures for identification, reporting and resolving conflicts of interest;
(g) management of breaches of the code of conduct, including the monitoring of compliance and reporting of breaches;
(h) use and disclosure of information by directors and employees;
(i) reduction or elimination of improper influence on directors and employees in their position as a director or employee of the public enterprise; and
(j) trading in and holding of shares, securities or other financial instruments by directors and employees.

Conduct of employees

47.—(1) An employee of a public enterprise must comply with the code of conduct of the public enterprise as it relates to employees.

(2) A public enterprise must take all reasonable steps to ensure that each of its employees discloses to the public enterprise any interest of the employee that may conflict with the proper performance of his or her duties and functions as an employee of the public enterprise.

Division 3—Management

Board meetings

48.—(1) The board must meet—

(a) at least once every 2 months, unless otherwise approved by the Minister; and
(b) at any other time that the board considers necessary for the efficient management of the business and affairs of the public enterprise.

(2) The quorum for a board meeting is a majority of the directors holding office.

(3) A board meeting must be chaired by—

(a) the chairperson;
(b) in the chairperson's absence, the deputy chairperson; or
(c) in the absence of the chairperson and deputy chairperson, a director appointed by the directors present.

Procedure at board meetings

49.—(1) Except as provided under its constitution or any written law that establishes an entity that is a public enterprise, the board decides a matter by a majority of the directors present and voting.

(2) The chairperson of the meeting has a deliberative vote and, if necessary, a casting vote.

(3) Except as provided by this Act, the board may regulate its proceedings.

(4) A public enterprise must keep written minutes of—

(a) all board meetings; and
(b) all meetings of committees of the board.

Resolution in lieu of meeting

50.—(1) The board may pass a resolution without a meeting if—

(a) the board has previously—
(b) all the directors entitled to vote on the resolution assent to the resolution; and
(c) notice of the resolution, including its terms, has been given to each director or reasonable efforts have been made to give that notice.

(2) A resolution in lieu of a meeting is passed when the last director has assented to the resolution.

Chief executive officer

51.—(1) The board of a public enterprise must appoint a suitably qualified person as the chief executive officer of the public enterprise.

(2) The chief executive officer is responsible and accountable to the board for the management of the business and affairs of the public enterprise.

(3) The public enterprise must employ the chief executive officer under a contract of employment that provides inter alia for—

(a) a specified proportion of the chief executive officer's remuneration to be payable or a specified benefit to become due to the chief executive officer, only if—
(b) an annual review of the chief executive officer's performance.

Delegations

52.—(1) The board may by resolution delegate in writing any of its powers and functions except the power to delegate, to any of the following—

(a) a committee of the board;
(b) a director;
(c) the chief executive officer;
(d) an employee of the public enterprise.

(2) The chief executive officer may delegate in writing any of the chief executive officer's powers and functions except the powers and functions delegated to the chief executive officer under subsection (1) and the power to delegate, to an employee of the public enterprise.

(3) A delegation is subject to any condition specified in the written delegation.

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

(5) A delegation may be varied or revoked at any time and does not prevent the board or the chief executive officer from exercising or performing the delegated power or function.

Restrictions on indemnity by public enterprise for directors and executive officers

53. A public enterprise must not—

(a) exempt a director or an executive officer of the public enterprise from a liability owed to it by the director or executive officer in that capacity;
(b) indemnify a director or an executive officer of the public enterprise or of its subsidiary in respect of a liability owed to the public enterprise or the subsidiary by the director or executive officer in that capacity; or
(c) except as permitted by section 55, indemnify a director or an executive officer of the public enterprise or its subsidiary in respect of a liability owed to a person other than the public enterprise or the subsidiary of the public enterprise.

Restrictions on indemnity by subsidiary of public enterprise for directors and executive officers

54. A subsidiary of a public enterprise must not—

(a) exempt a director or an executive officer of the subsidiary from a liability owed to the subsidiary by the director or executive officer in that capacity;
(b) indemnify a director or an executive officer of the subsidiary in respect of a liability owed by the director or executive officer in that capacity to—
(c) indemnify a director or an executive officer of the public enterprise or of another subsidiary of the public enterprise in respect of a liability owed by the director or executive officer in that capacity to—
(d) except as permitted by section 55, indemnify a director or an executive officer of the subsidiary in respect of a liability owed to a person other than the public enterprise or the subsidiary of the public enterprise.

Permitted indemnity of liability owed by director or executive officer to third person

55. A public enterprise or the subsidiary of a public enterprise may indemnify a director or executive officer of the public enterprise or the subsidiary in respect of a liability owed by the director or executive officer to a person other than the public enterprise or the subsidiary if—

(a) the Minister has given his or her prior approval;
(b) the liability arose out of an act or omission of the director or executive officer in that capacity; and
(c) the act or omission was done in good faith and with due care.

PART 7—PRINCIPLE OF TRANSPARENT PERFORMANCE

Division 1—Financial transparency

Financial records

56.—(1) A public enterprise, and each subsidiary of a public enterprise if any, must keep written financial records that—

(a) correctly record and explain its transactions and financial position and performance;
(b) enable financial statements to be prepared and audited in accordance with the Financial Management Act 2004; and
(c) enable other reports to be prepared as required by this Act.

(2) The records required by subsection (1)—

(a) must be kept for at least 7 years after the dates of the transactions to which they relate;
(b) must be kept at the principal place of business of the public enterprise; and
(c) may be kept in electronic form if they are readily retrievable and convertible into a physical form.

Financial statements

57.—(1) The board must ensure there is prepared, for each financial year, financial statements for the group consisting of the public enterprise and its subsidiaries if any.

(2) The financial statements and the notes to them must together include all information that is necessary to ensure that the financial statements give a true and fair view of the financial position of the public enterprise and the group consisting of the public enterprise and its subsidiaries if any.

(3) Without limiting subsection (2), the financial statements must consist of—

(a) a balance sheet, profit and loss statement and other financial reports for the year as required by and consistent with applicable accounting standards;
(b) notes to the financial statements as required by applicable accounting standards; and
(c) a declaration by the directors declaring whether, in their opinion—

(4) In this section, "subsidiary" does not include a joint venture.

Division 2—Operational transparency

Annual report

58. A public enterprise must prepare and submit an annual report in accordance with the Financial Management Act 2004.

Minister must table annual report in Parliament

59. The Minister must table the annual report of a public enterprise in Parliament in accordance with the Financial Management Act 2004.

PART 8—PRINCIPLE OF MONITORED PERFORMANCE

Division 1—Minister's oversight

Role of Minister

60.—(1) For each public enterprise that is a company, the Minister may exercise all the powers and rights that a shareholder has in relation to the public enterprise under this Act, any other written law or the constitution of the public enterprise.

(2) Subsection (1) is subject to any other provision in this Act.

Resolutions of wholly-owned public enterprise are effected by Minister

61.—(1) For the purposes of this Act, any other written law or the constitution of a public enterprise, a resolution of the shareholders of the public enterprise means, in the case of a public enterprise that is wholly-owned by the State, a resolution effected by the Minister under subsection (2).

(2) The Minister effects a resolution by—

(a) recording the terms of the resolution in a document; and
(b) signing the document.

(3) Any requirement that a resolution of the shareholders of the public enterprise be lodged with a body or officer is satisfied by lodging the resolution effected by the Minister.

(4) Notice of a resolution effected by the Minister is not required.

(5) This section applies notwithstanding anything to the contrary in any written law or the constitution of the public enterprise.

Minister may require disclosure by public enterprise

62.—(1) The Minister may in writing direct a public enterprise to disclose specified information or documents relating to the affairs of the public enterprise or its subsidiary.

(2) The public enterprise must disclose the information or documents to the person or persons specified in the direction, which may include—

(a) the Minister; or
(b) the public.

(3) The Minister must—

(a) consult the board before giving a direction under subsection (1); and
(b) before giving the direction, take into account any matter raised by the board.

(4) Subject to the terms of the Minister's direction, a public enterprise may impose conditions on the use of information disclosed under this section, including restrictions on its further disclosure.

(5) Compliance with a direction under subsection (1) does not give rise to any civil or criminal liability.

Division 2—Public enterprise monitoring

Public enterprise monitoring functions

63. The Ministry must provide financial, commercial and public policy analyses and advice to the Minister on all matters related to the operation, performance and governance of public enterprises.

Public enterprise monitoring may require disclosure

64.—(1) To enable the Ministry to provide advice to the Minister on all matters related to the operation, performance and governance of public enterprises, the permanent secretary of the Ministry may, by notice in writing to a public enterprise, require the public enterprise to disclose to the Ministry—

(a) any specified document in the possession or control of the public enterprise; or
(b) specified information about the public enterprise and its affairs and activities,

related to the operation, performance and governance of the public enterprise.

(2) A public enterprise must comply with a notice under subsection (1) within 10 working days of receiving it.

Ministry must report on each public enterprise

65. For each public enterprise, the Ministry must within 4 months after the end of the financial year of the public enterprise submit to the Minister a report on the performance of the public enterprise.

PART 9—MISCELLANEOUS

Regulations

66. The Minister may make regulations to prescribe matters that are required or permitted by this Act to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to this Act and generally for achieving the purposes of this Act including—

(a) prescribing additional matters that must be contained in the statement of corporate intent, or excluding one or more matters set out in section 23(1);
(b) prescribing matters in relation to the remuneration of directors appointed under section 30;
(c) prescribing the percentage of share ownership or control for the purposes of section 43(2)(e);
(d) prescribing activities of a public enterprise that require the prior approval of the Minister; and
(e) prescribing offences and penalties not exceeding—

Repeal

67. The Public Enterprise Act 1996 is repealed.

Transitional provisions

68.—(1) A person who, at the commencement of this Act, is a director or an employee of an entity listed in Schedule 1 continues in office or employment on the terms on which he or she was appointed as a director or engaged as an employee.

(2) Any civil servant who is a director at the commencement of this Act continues his or her directorship until the expiration or revocation of such appointment and, subject to any written law, he or she is eligible for reappointment to the board notwithstanding that the civil servant's ministry or department has direct regulatory or operational responsibility for the principal business of the public enterprise.

(3) Notwithstanding the repeal of the Public Enterprise Act 1996, any reorganisation of a Government entity under the Public Enterprise Act 1996 that exists at the commencement of this Act continues in accordance with the provisions governing reorganisation in the Public Enterprise Act 1996 until the reorganisation of the Government entity is complete.

(4) Notwithstanding the repeal of the Public Enterprise Act 1996, any reporting that is required to be made by a public enterprise under the Public Enterprise Act 1996 for a financial year that has commenced before the commencement of this Act, must be made or continue to be made in accordance with the Public Enterprise Act 1996 for that financial year.

Consequential amendments

69.—(1) The Acts listed in Schedule 2 are amended as set out in that schedule.

(2) A person who, at the commencement of this Act, is a director or member of an entity listed in Schedule 3 continues in office on the terms on which he or she was appointed as a director or member.


SCHEDULE 1

(Section 8(1))

________

PUBLIC ENTERPRISES

1. Airports Fiji Pte Limited

2. Energy Fiji Limited

3. Fiji Broadcasting Corporation Pte Limited

4. Fiji Hardwood Corporation Pte Limited

5. Fiji Meat Industry Board

6. Fiji Public Trustee Corporation Pte Limited

7. Fiji Rice Pte Limited

8. Food Processors (Fiji) Pte Limited

9. Post Fiji Pte Limited

10. Unit Trust of Fiji (Management) Limited

11. Yaqara Pastoral Company Pte Limited

SCHEDULE 2

(Section 69)

________

CONSEQUENTIAL AMENDMENTS

Audit Act 1969

1. The Audit Act 1969 is amended by—

(a) deleting section 16; and
(b) in section 17—

Biosecurity Act 2008

2. The Biosecurity Act 2008 is amended by—

(a) in section 8—
(b) deleting section 9(4)(b) and substituting the following—
(c) in Schedule 1 in Part A—
(d) deleting "Public Enterprise Minister" wherever it appears and substituting "Minister responsible for public enterprises"; and
(e) in Schedule 2—

Civil Aviation Authority of Fiji Act 1979

3. The Civil Aviation Authority of Fiji Act 1979 is amended by—

(a) in section 4—
(b) in sections 5(2) and 6 after "Minister", inserting "responsible for public enterprises";
(c) in sections 10(1) and 11(2), deleting "Minister" and substituting "Authority";
(d) deleting section 27 and substituting the following—

Companies Act 2015

4. The Companies Act 2015 is amended by—

(a) in section 3, deleting the definition of "Government entity" and substituting the following—
(b) in sections 279(d)(iii) and 543(2)(f), deleting "Corporation Limited" and substituting "Corporation Pte Limited".

Copyright Act 1999

5. The Copyright Act 1999 is amended in section 2(1) in the definition of "State" by deleting paragraph (b) and substituting the following—

"(b) a company that is a public enterprise as defined in section 2 of the Public Enterprises Act 2019;".

Employment Relations Act 2007

6. The Employment Relations Act 2007 is amended by—

(a) in section 4—
(b) in section 185—

Fiji National Provident Fund Act 2011

7. The Fiji National Provident Fund Act 2011 is amended in section 4(1) in the definition of "public official" in paragraph (c) by deleting "commercial statutory authority or a Government company (both as defined in the Financial Management Act 2004 (except the Board)" and substituting "statutory authority that is a public enterprise as defined in section 2 of the Public Enterprises Act 2019 or a Government company as defined in section 2(1) of the Financial Management Act 2004".

Fiji Public Trustee Corporation Act 2006

8. The Fiji Public Trustee Corporation Act 2006 is amended by—

(a) in section 2—
(b) deleting section 3 and substituting the following—
(c) in Part 2, deleting the heading and substituting "The Corporation";
(d) in section 5—
(e) deleting section 7 and substituting the following—
(f) deleting section 9 and substituting the following—
(g) deleting section 11;
(h) in section 20(3), deleting "in accordance with section 69 of the Public Enterprise Act 1996";
(i) in section 31(1), deleting "in accordance with section 60 of the Public Enterprise Act 1996,";
(j) deleting section 34(1) and substituting the following—
(k) in section 36(1)—
(l) in section 43—
(m) in sections 4(b) and 37, deleting "Fiji Public Trustee Corporation Limited" and substituting "Corporation"; and
(n) in sections 10, 15(1), 41 and 42, deleting "Fiji Public Trustee Corporation Limited" wherever it appears and substituting "the Corporation".

Fiji Roads Authority Act 2012

9. The Fiji Roads Authority Act 2012 is amended by—

(a) in section 5—
(b) deleting section 9 and substituting the following—
(c) deleting section 29; and
(d) in section 32(2)(g), deleting "half yearly and".

Fijian Competition and Consumer Commission Act 2010

10. The Fijian Competition and Consumer Commission Act 2010 is amended in section 4(1) by—

(a) in the definition of "government agency", deleting ", within the meaning of the Public Enterprise Act 1996,"; and
(b) after the definition of "government agency", inserting the following new definitions—

Financial Management Act 2004

11. The Financial Management Act 2004 is amended by—

(a) in section 2(1)—
(b) deleting sections 41 and 53.

Foreign Investment Act 1999

12. The Foreign Investment Act 1999 is amended in section 3(1) in the definition of "national enterprise" by deleting "a government entity as described in the Public Enterprise Act 1996" and substituting "any Government company or statutory authority, both as defined in section 2 of the Financial Management Act 2004".

Housing Act 1955

13. The Housing Act 1955 is amended by—

(a) in section 3(2) after "Minister", inserting "responsible for public enterprises in writing subject to the approval of the Prime Minister";
(b) in section 31, deleting subsection (3) and inserting the following new subsections—
(c) in sections 3(3) and (4), 4, 9 and 31(4) and (6) after "Minister", inserting "responsible for public enterprises".

International Seabed Mineral Management Act 2013

14. The International Seabed Mineral Management Act 2013 is amended in section 21 by—

(a) in subsection (2), deleting "Government Company with limited liability for the purposes of the Public Enterprise Act 1996" and substituting "public enterprise under the Public Enterprises Act 2019";
(b) deleting subsections (4) and (5); and
(c) after "Corporation" wherever it appears, inserting "Pte Limited".

Investment Fiji Act 1980

15. The Investment Fiji Act 1980 is amended by—

(a) in section 4—
(b) deleting section 10 and substituting the following—
(c) in section 19—
(d) in section 20(1)(b), "accounts of the Board audited in accordance with section 19" and substituting "audited accounts of the Board".

Land Transport Act 1998

16. The Land Transport Act 1998 is amended by—

(a) in section 7––
(b) deleting section 13 and substituting the following—
(c) deleting section 15 and substituting the following—
(d) in section 16—
(e) deleting section 30 and substituting the following—
(f) in section 31(1), deleting "required to be submitted to the Minister under section 30".

Maritime Safety Authority of Fiji Act 2009

17. The Maritime Safety Authority of Fiji Act 2009 is amended by—

(a) in section 2—

Meat Industry Act 1969

18. The Meat Industry Act 1969 is amended by—

(a) in section 2 after the definition of "meat", inserting the following new definition—
(b) in section 3(3) after "Minister", inserting "responsible for public enterprises in writing subject to the approval of the Prime Minister";
(c) in section 4—
(d) in section 6(c), after "Minister" inserting "and the Minister responsible for public enterprises";
(e) in sections 7 and 10 after "Minister", inserting "responsible for public enterprises";
(f) in section 11—
(g) deleting section 12 and substituting the following—

National Employment Centre Act 2009

19. The National Employment Centre Act 2009 is amended in section 5(1) by—

(a) after the definition of "Fund", inserting the following new definition—
(b) in the definition of "public authority", deleting "commercial statutory authority or a government commercial company" and substituting "public enterprise as defined in section 2 of the Public Enterprises Act 2019".

Scrap Metal Trade Act 2011

20. The Scrap Metal Trade Act 2011 is amended in section 2 in the definition of "public infrastructure metal" by deleting "Government Commercial Company" and substituting "company that is a public enterprise as defined in section 2 of the Public Enterprises Act 2019".

Sea Ports Management Act 2005

21. The Sea Ports Management Act 2005 is amended by—

(a) in section 6—
(b) in section 7—
(c) in section 9, deleting "In accordance with section 60 of the Public Enterprise Act 1996, the" and substituting "The";
(d) deleting section 16 and substituting the following—
(e) in section 24(3)(e), deleting "Ports Terminal Limited" and substituting "Fiji Ports Terminal Pte Limited";
(f) in section 55—
(g) deleting sections 3 and 13; and
(h) in sections 8(a) and 15(2), deleting "memorandum and".

Tourism Fiji Act 2004

22. The Tourism Fiji Act 2004 is amended by—

(a) in section 6—
(b) deleting section 10(1) and substituting the following—

Water Authority of Fiji Act 2007

23. The Water Authority of Fiji Act 2007 is amended by—

(a) in section 9—
(b) deleting section 10 and substituting the following—
(c) in section 12(2)(b), deleting "Public Enterprise Act 1996" and substituting "Companies Act 2015";
(d) in section 20—
(e) in section 22(1)(k), deleting "half-yearly and annual reports" and substituting "the annual report";
(f) in section 25, deleting subsection (4) and substituting the following—

(g) deleting sections 4 and 18(4).


SCHEDULE 3

(Section 69(2))

________

ENTITIES TO WHICH SECTION 69(2) APPLIES

1. Biosecurity Authority of Fiji

2. Civil Aviation Authority of Fiji

3. Fiji Roads Authority

4. Housing Authority

5. Investment Fiji Board

6. Land Transport Authority

7. Maritime Safety Authority of Fiji

8. Public Rental Board

9. Tourism Fiji

10. Water Authority of Fiji


Passed by the Parliament of the Republic of Fiji this 15th day of May 2019.


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