Communications Commission Act 2015

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Communications Commission Act 2015


Act 12 of 2015



C
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COMMUNICATIONS COMMISSION ACT

2015


Communications Commission Act 2015 Arrangement of Sections





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COMMUNICATIONS COMMISSION ACT 2015

Arrangement of Sections

Section

PART I – PRELIMINARY 5

1 Short Title .............................................................................................................. 5
2 Interpretation .......................................................................................................... 5

PART II – THE COMMUNICATIONS COMMISSION 6

3 The Communications Commission ........................................................................ 6
4 Functions ................................................................................................................ 7
5 Powers .................................................................................................................... 7
6 Duties ..................................................................................................................... 7
7 Members of the Commission ................................................................................. 7
8 Appointments Committee ...................................................................................... 8
9 Commission appointment process ......................................................................... 8
10 Appointment criteria .............................................................................................. 9
11 Terms of Appointment ........................................................................................... 9
12 External consultants ............................................................................................. 10
13 Eligibility and removal of members .................................................................... 10
14 Meetings and decisions of the Commission ......................................................... 11
15 Determinations ..................................................................................................... 12
16 Conflicts of interest .............................................................................................. 12
17 Other employees of the Commission ................................................................... 13
18 Delegation ............................................................................................................ 13
19 International representation and advice to the Minister ....................................... 13
20 Validity of conduct .............................................................................................. 14
21 Members not personally liable ............................................................................. 14

PART III – FINANCES, REPORTING AND ACCOUNTABILITY 14

22 Funding ................................................................................................................ 14

Arrangement of Sections Communications Commission Act 2015





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23 Administration of funds ....................................................................................... 15
24 Budget .................................................................................................................. 15
25 Expenditure forecasts ........................................................................................... 16
26 Accounts and audit ............................................................................................... 16
27 Annual report ....................................................................................................... 17
28 Borrowing Powers ................................................................................................ 17




Communications Commission Act 2015 Section 1





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COMMUNICATIONS COMMISSION ACT 2015

Act 12 of 2015

AN ACT TO ESTABLISH THE COMMUNICATIONS COMMISSION

I assent,

TUPOU VI,

18th February 2016.

BE IT ENACTED by the King and Legislative Assembly of Tonga in the

Legislature of the Kingdom as follows:

PART I – PRELIMINARY

1 Short Title

(1) This Act may be cited as the Communications Commission Act 2015.

(2) This Act shall come into force on a date proclaimed by Cabinet.

2 Interpretation

In this Act, unless the context otherwise requires -

“Appointments Committee” has the meaning given in section 8;

“Audit Office” has the meaning given in the Public Audit Act 2007;

“Chairperson” means the person appointed as a chairperson under section 8;

“commencement date” means the date that this Act comes into force under

section 1(2);

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“Commission” means the Communications Commission established under

this Act;

“Commissioner” means a person appointed as a commissioner under section 7;

“Communications Act” means the Communications Act 2015;

“Communications Commission Fund” means the fund of that name

established in accordance with section 23(1)(a);

“ICT” means International and Communications Technology

“ICT Expert” means a person appointed as an ICT expert under section 10(2);

“licensee” has the meaning given in the Communications Act;

“Member” means each of the Chairperson, the Commissioner and the ICT

Expert;

“Minister” means the Minister responsible for communications;

“Ministry” means the Ministry responsible for communications;

“Public Fund” has the meaning given in the Public Finance Management

Act 2002;

“Remuneration Authority” means the authority established under section 4

of the Remuneration Authority Act 2010;

“respondent” has the meaning given under section 13(2);

“Universal Service Fund” means the fund of that name established in

accordance with section 23(1)(b);

“universal service agreement” has the meaning given under the

Communications Act; and

“universal service regime” has the meaning given under the

Communications Act.

PART II – THE COMMUNICATIONS COMMISSION

3 The Communications Commission

(1) The Communications Commission is hereby established.

(2) The Commission shall be a body corporate with perpetual succession and a

common seal.

(3) The Commission shall be capable of suing and being sued and, in the

performance of its functions, exercise of its powers and discharge of its duties

under this Act, it may acquire, hold and dispose of real and personal property

and do and suffer all such acts and things as bodies corporate may do and suffer.

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(4) Except as expressly provided otherwise in this Act, the Commission shall act

independently in performing its functions, exercising its powers and

discharging its duties under this Act.

4 Functions

The Commission shall have the functions imposed on the Commission by the

Communications Act.

5 Powers

(1) The Commission shall have the powers granted to the Commission by the

Communications Act.

(2) In addition to powers conferred on the Commission under subsection (1), the

Commission shall have power as a statutory corporation to do all things

necessary or convenient for or in connection with the performance of its

functions or discharge of its duties.

(3) Nothing in subsection (1) shall impose on the Commission any form of duty or

liability enforceable by legal proceedings.

6 Duties

The duties of the Commission include:

(a) performing its functions and exercising its powers with due care and diligence;

(b) using best endeavours to avoid conflicts of interests;

(c) ensuring the funds of the Commission are used efficiently and appropriately

with a view to minimising the fees and levies imposed on the communications

industry; and

(d) any duties imposed on the Commission under the Communications Act.

7 Members of the Commission

(1) The Commission shall consist of 4 members which shall include :

(a) a Chairperson;

(b) a Deputy – Chairperson; and

(c) two members

(2) One of the members under subsection (1) shall be an ICT expert..

(3) The Members shall be responsible for:

(a) the performance of the functions and discharge of the duties of

the Commission;

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(b) the exercise of the powers of the Commission; and

(c) the execution of the policies, and the implementation of the decisions, of

the Commission.

(4) The Commissioner shall be:

(a) responsible for the supervision and day-to-day management of the affairs

of the Commission and its staff;

(b) the head of the staff of the Commission ; and

(c) the Commission Secretary

(5) No member shall be subject to the Public Service Act.

8 Appointments Committee

(1) An Appointments Committee is established to appoint the members of the

Commission and the Commissioner, and such appointments shall be published

by the Minister in the Gazette.

(2) The members of the Committee shall consist of:

(a) The Minister;

(b) ICT Expert; ; and

(c) A representative of the industry consumers.

(3) The members of the Committee appointed under subsection (2)(b) and (c) shall

be appointed by the Minister with the recommendation of the Chief Executive

Officer.

(4) The representative of the industry consumers shall be entitled to reasonable fees

and expenses as determined by Cabinet, upon the recommendation of the

Minister, for performing his functions , exercising his powers and discharging

his duties under this Act.

9 Commission appointment process

(1) The Appointments Committee shall recommend four people to be appointed as

Members under section 7 as soon as practicable after the commencement date.

(2) The Appointments Committee shall seek to minimise the period of vacancy of

the position of each Member and in any event shall make a recommendation

for the position of each Member within 6 months of the end of the Member’s

fixed term.

(3) Before recommending a person for appointment as a Member under subsection

(1), the Appointments Committee shall:

(a) undertake an open, competitive and transparent selection process that

seeks to identify well-qualified candidates, including publishing

Communications Commission Act 2015 Section 10





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advertisements for applications nationally and internationally, reviewing

any available references and holding interviews; and

(b) invite proposals for candidates from the public and invite comments from

licensees, including any bodies representing participants in the

communications sector, about candidates under consideration and take

into account such comments.

(4) The appointment of the members of the Commission shall be approved by the

Minister with the consent of Cabinet.

10 Appointment criteria

(1) The Appointments Committee shall not appoint a person as the Chairperson or

as the Commissioner unless a majority of the members of the Appointments

Committee are satisfied that the person:

(a) is a person of integrity, independence of mind and good reputation;

(b) is a graduate of a recognized tertiary institute;

(c) is qualified for appointment, having regard to the functions, powers and

duties of the Commission, by virtue of that person's knowledge of or

experience in industry, commerce, economics, law or accountancy;

(d) possesses sound knowledge of the communications sector; and

(e) is not disqualified from appointment under section 13;

(2) The Appointments Committee shall not recommend a person for appointment

as the ICT Expert unless a majority of the members of the Appointments

Committee are satisfied that the person:

(a) is a person of integrity, independence of mind and good reputation;

(b) is a graduate of a recognized tertiary institute ;

(c) possesses at least 10 years’ experience in one or more of the fields of

management, law, economics, engineering or commerce;

(d) has expertise and experience in the operation and administration of a

communications regulatory regime; and

(e) is not disqualified for appointment under section 13.

11 Terms of Appointment

(1) Appointments made under section 8 shall be on the following terms:

(a) Each member shall be appointed for a term of up to 3 years, and may be

renewed for only one more term of 3 years , and may be eligible for re-

appointment after 3 years from the expiry of his last term;

(b) The Commissioner shall be the secretary of the Commission;

(c) The Commissioner shall be appointed on a full- time basis;

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(d) The Chairperson and the members of the Commission shall be appointed

on a part-time basis; and

(e) A Member may resign from office on giving 90 days’ written notice to

the Minister.

(2) The Appointments Committee should ensure that no more than two Member’s

fixed term of appointment shall expire within the same 3 month period.

(3) The remuneration of each Member shall be determined by the Remuneration

Authority taking into account the criteria set out in section 14 of the

Remuneration Authority Act 2010.

12 External consultants

The Commissioner may acquire services from external consultants from time to time,

on such terms and conditions as the Commissioner may reasonably determine, to

assist the Commission with the efficient performance of its functions under this Act.

13 Eligibility and removal of members

(1) A person shall not be eligible to be appointed, or remain, as a Member if

that person:

(a) has committed a serious breach of the terms and conditions of

their appointment;

(b) materially fails to perform their functions or discharge their duties under

this Act;

(c) takes a direct or indirect equity or other financial interest in a licensee,

or receives remuneration from a licensee other than through a fund over

which the person has no control or influence;

(d) is determined by at least 2 medical practitioners to be unable due to any

physical or mental incapacity to perform the functions, discharge the

duties or exercise the powers of their position;

(e) becomes or has been declared bankrupt or insolvent, whether in

Tonga elsewhere;

(f) has a conviction for or is convicted of any offence in the Kingdom or

elsewhere under a law involving dishonesty or corruption or where the

penalty prescribed for such offence includes imprisonment for 1 year

or longer;

(g) is a staff member or officer of a Department or Ministry of the

Government of Tonga; and

(h) holds an elected office in Tonga.

(2) If the Minister has reason to believe that a Member (respondent) is not eligible

to continue in office in accordance with subsection (1), the Minister shall:

Communications Commission Act 2015 Section 14





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(a) call for and arrange a meeting of the Appointments Committee; and

(b) inform the Appointments Committee and the respondent by written

notice that the Minister is considering removing the respondent and of

the grounds under section 13(1) for the proposed removal.

(3) The respondent shall be given an opportunity to make representations in

response to the Minister’s notice and the Appointments Committee shall give

the respondent an opportunity to be heard, including being represented by a

legal practitioner.

(4) The respondent shall not be removed from office on the grounds in section

13(1)(a) or (b) unless:

(a) the respondent’s alleged conduct is enquired into by an independent and

impartial person appointed as soon as practicable by the Appointments

Committee;

(b) the respondent is given an opportunity to make representations in such

enquiry, including being represented by a legal practitioner; and

(c) the Appointments Committee advises, based on the result of its enquiry,

that the Minister remove the respondent.

(5) If the Minister, acting on the advice of the Appointments Committee, is

satisfied that the respondent is ineligible under section 13(1) to continue in

office, the Minister may remove the respondent from office with no less than

28 days’ notice in writing and shall provide the detailed grounds under section

13(1) for such removal.

(6) In advising the Minister under this section, the Appointments Committee shall

consider any relevant advice that is necessary to determine whether the removal

from office is reasonably justified in the circumstances.

14 Meetings and decisions of the Commission

(1) The Commission may set its own procedures, subject to this Act.

(2) The Commission shall meet at least once in every 2 months.

(3) Any Member may convene a meeting of the Commission by written notice

provided to every other Member.

(4) Subject to subsections (2) and (7), the Chairperson shall determine the place

and time for each meeting of the Commission, having regard to the availability

of the members.

(5) At meetings of the Commission:

(a) the Chairperson shall preside. If the Chairperson is unable to preside, the

Deputy- Chairperson shall preside;

(b) a quorum shall be three Members;

(c) all Members present are entitled to vote;

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(d) a decision of a majority of the Members present at any meeting shall be

the decision of the Commission; and

(e) in the event of an equality of votes, the presiding Member shall have a

casting vote.

(6) The Commission shall keep written minutes of all of its meetings.

(7) Meetings of the Commission may be held by teleconference or videoconference

or any other means that permit all Members in the meeting to communicate

with every other Member in the meeting simultaneously and instantaneously.

15 Determinations

A determination in writing signed, or assented to in writing, by all the Members of the

Commission necessary to constitute a quorum shall be as valid and effectual as if it

had been made at a meeting of the Commission duly called and constituted by those

members.

16 Conflicts of interest

(1) If a Member of the Commission is taking part, or is to take part, in the

consideration or determination by the Commission of a matter that relates to or

affect a business or body corporate in which that Member has an interest, that,

in accordance with the rules of natural justice, disqualifies or would disqualify

the Member from taking part in the consideration or determination of that

matter:

(a) the Member shall disclose that interest to the other Members of the

Commission as soon as possible after the relevant facts have come to the

Member’s attention;

(b) the disclosure shall be noted in the minutes of the meeting;

(c) the Member shall not continue to take part in the consideration of the

matter; and

(d) the Member shall not be counted for the purposes of constituting a

quorum for the Commission on any such deliberation or decision.

(2) If the operation of subsection (1) means that Commission cannot proceed with

deliberation or decision on a matter, the Members of the Commission other than

the Member mentioned in subsection (1) may, by unanimous agreement, decide

that the Member mentioned in subsection (1) may take part in consideration

and decision on the matter.

(3) A decision under subsection (2) must be made by at least two Members. If this

is not possible, consideration of the matter mentioned in subsection (1) must be

postponed until such time as two non-conflicted Members are able to consider

the issue.

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(4) This section does not apply to the extent that the interest of a Member is only

as a result of the supply of goods and services that are available to the public

on the same terms and conditions.

17 Other employees of the Commission

(1) The Commission may appoint such employees as may be necessary to enable

the Commission to perform its functions and discharge its duties.

(2) The Commission shall take reasonable measures to ensure that no conflict of

interest exists in relation to its officers, employees, agents or consultants in

relation to any licensee.

18 Delegation

(1) The Commission may, by unanimous decision of all Members, and subject to

any regulations made for the purposes of this section, delegate any of its

functions, powers or duties other than this power of delegation, to:

(a) any Member; or

(b) any employees under section 17.

(2) A delegation under subsection (1):

(a) shall be in writing;

(b) shall be subject to such conditions and restrictions as are specified in the

instrument of delegation;

(c) may be specified to be restricted to a class of matters;

(d) is revocable at will by resolution in writing of the Commission; and

(e) does not affect or prevent the performance of a function, the exercise of

a power or discharge of a duty by the Commission.

(3) A delegate under subsection (1) is subject to the same duties and responsibilities

as a Member under this Act.

19 International representation and advice to the Minister

(1) The Commission shall:

(a) on its own motion or at the Minister’s request, make recommendations

to and advise the Minister on policies for the communications sector;

(b) at the Minister’s request, represent Tonga in regional and international

organisations relating to communications; and

(c) at the Minister’s request, represent Tonga and negotiate and make

recommendations to the Minister for the adoption of regional and

international treaties, commitments, recommendations or standards.

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(2) The Minister shall submit any recommendations made by the Commission

under subsection (1)(c) to Cabinet for its approval.

(3) The Commission shall not subject to subsection (1)(c), enter into any regional

or international treaty or convention obligations on behalf of Tonga; or

(4) The Commission shall pay Tonga’s membership fee or other charges to any

regional or international telecommunications body.

20 Validity of conduct

Subject to this Act, any act, decision or proceeding of the Commission is not invalid

by reason of:

(a) a defect or irregularity in, or in connection with, the appointment or removal of

a Member;

(b) a vacancy in, or absence from, the office of a Member;

(c) a failure by a Member to comply with section 16; or

(d) want of form, or any informality or error of form.

21 Members not personally liable

No Member of the Commission shall be personally liable for any act done or default

made by the Commission in good faith in pursuance or intended pursuance of the

powers, duties and functions of the Commission under this Act.

PART III – FINANCES, REPORTING AND ACCOUNTABILITY

22 Funding

The funds of the Commission shall comprise the following:

(a) fees described in section 18 of the Communications Act;

(b) penalties under Division 2 of Part X of the Communications Act;

(c) loans raised by the Commission;

(d) grants, donations or other contributions, including contributions from

international organisations or from a government, government department,

government instrumentality or a statutory entity of a country other than the

Kingdom of Tonga, if any, made to or for the benefit of the Communications

Commission; and

(e) moneys appropriated, if any, from the Public Fund by Legislative Assembly.

Communications Commission Act 2015 Section 23





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23 Administration of funds

(1) Within 1 month of the commencement date, the Commission shall establish:

(a) a special fund for the Commission, called the Communications

Commission Fund; and

(b) a special fund for the universal service regime, called the Universal

Service Fund.

(2) Subject to subsections (3) and (4), all moneys received by or for the benefit of

the Commission shall be:

(a) paid into the Communications Commission Fund; and

(b) at the sole disposal of the Commission for the sole purpose of funding

activities in exercises of its powers, performance of its functions or

discharge of its duties under this Act.

(3) All moneys received under Division 4 of Part VI or Division 2 of Part X of the

Communications Act, or otherwise received for the purpose of funding the

universal service regime, shall be:

(a) paid into the Universal Service Fund; and

(b) at the sole disposal of the Commission for the sole purpose of funding

the universal service regime.

(4) To the extent that the Commission receives revenue in any financial year that

exceeds its expenditure, then the Commission:

(a) may retain all or part of that surplus up to the greater of:

(i) an amount equivalent to 25% of the amount received as revenue

in that financial year;

(ii) an amount notified in writing by the Minister to the

Commission; and

(b) must pay any remaining surplus into the Universal Service Fund.

(5) For the avoidance of doubt, fees collected under this Act do not constitute

public money for the purposes of the Public Finance Management Act 2002.

(6) The Commission must levy and collect fees and pay them into the relevant fund

under subsections (2) to (4) as soon as practicable after they become payable.

(7) Fees levied by the Commission Act shall constitute a debt due to the

Commission and may be recovered in court.

(8) In any proceeding to recover such debt the certificate referred to in subsection

(6) shall be prima facie evidence of the existence and amount of such debt.

24 Budget

The Commission shall, by no later than 3 months before the end of each financial year

prepare, and submit to the Ministry, a budget comprising:

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(a) estimates of all funding proposed to be raised or received in the next

financial year, itemised to an appropriate level; and

(b) estimates of proposed expenditure by the Commission for the next

financial year, itemised to an appropriate level.

25 Expenditure forecasts

(1) Within the budget prepared under section 24, the Commission shall categorise

its proposed revenue and expenditure in a manner that:

(a) provides a high degree of transparency in relation to the Commission’s

proposed expenditure within that financial year in performing

its functions;

(b) identifies significant items of revenue and expenditure in separate line

items with an explanation for that revenue or expenditure;

(c) explains any instances of significant non-recurring expenditure for large

capital items and the manner in which the Commission proposes to

allocate such expenditure within its accounts;

(d) explains the reason for any forecast material increases in expenditure

relative to the Commission’s actual expenditure in previous financial

years; and

(e) identifies the sources of funding and the anticipated level and allocation

of any surplus.

(2) The Commission shall ensure that its expenditure forecasts are reasonable and

reflect the Commission's estimate of the actual expenditure likely to be incurred

by the Commission in the next financial year and its relevant attribution.

(3) The Commission shall have regard to the Commission’s historical expenditure,

and the attribution of that historical expenditure, when preparing its expenditure

forecasts.

26 Accounts and audit

(1) The Commission shall keep full and correct accounts of all its financial

transactions, assets, liabilities and funds.

(2) The financial year of the Commission shall end on the 30th day of June.

(3) At the end of each financial year, the Commission shall prepare an income and

expenditure account showing its financial transactions for that year, together

with a balance sheet as at the last day of the financial year.

(4) The Commission shall, no later than 4 months after the end of each financial

year, submit its income and expenditure account and balance sheet to the Audit

Office for audit.

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(5) The Commission shall, no later than 6 months after the end of the financial year,

lay a copy of the audited accounts of the Commission, together with the

corresponding report of the Audit Office, before the Legislative Assembly.

(6) The Commission may incorporate a copy of the audited accounts of the

Commission, together with the corresponding report of the Audit Office, in the

annual report of the Commission.

27 Annual report

(1) The Commission shall, no later than 6 months after the end of each financial

year, furnish to the Minister an annual report that includes:

(a) a summary of its operations during that year;

(b) the results of its monitoring of the performance and efficiency of the

telecommunications sector;

(c) all financial statements and auditor’s reports as are required by this Act

or any other applicable law;

(d) a list of network operators under the Communications Act;

(e) a list of service providers under the Communications Act;

(f) a list of requests for arbitration under section 133 of the

Communications Act;

(g) a list of agreements filed with the Regulator under sections 134 and 138

of the Communications Act;

(h) details of any universal services agreements entered into by the

Commission and any expenditure made from the Universal

Services Fund;

(i) a list of consultants and advisors retained by the Commission and a

description of the matters in relation to which they have consulted or

advised; and

(j) a summary of material litigation involving the Commission and any other

material matters under Division 2B (Review mechanisms) of Part X of

the Communications Act.

(2) The Minster shall ensure a copy of the annual report is laid before the

Legislative Assembly.

28 Borrowing Powers

The Commission may borrow up to such an amount as may be notified by the Minister

in writing from time to time and on such terms as may be required by it for:

(a) meeting any capital expenditure; and

(b) performing of its functions under this Act.


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Passed by the Legislative Assembly this 6th day of October 2015.

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