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PUBLIC SERVICE ACT 1999

--------------ARRANGEMENT OF SECTIONS
Part 1 PRELIMINARY

1.
2.
3.

Short tile
Commencement
Interpretation
Part 2 THE PUBLIC SERVICE

4.
5.
6.
7.
8.
9.
10.

Public Service Values


Regulations and directions about the Public Service Values
Public Service Code of Conduct
Ground for discipline
Responsibilities of chief executives
Establishment of Senior Executive Service
Purpose of Senior Executive Service
Part 3 PUBLIC SERVICE COMMISSION

11.
12.
13.
14.
15.
16.
17.

Commissions statutory functions


Directions of Minister
Inquiries by Public Service Commission
Annual Reports by the Public Service Commission
Regulations
Delegations
Secretary and other staff of Public Service Commission
Part 4 SERVICE COMMISSIONS GENERALLY

18
19
20
21
22

Additional powers of service Commission


Reports by service Commissions
Service Commission directions
Delegations of employment powers to chief executive
Improperly influencing service Commission

23

Protection of members of Service Commissions


Part 5 PUBLIC SERVICE APPEAL BOARD

24
25
26
27

Continuation of Public Service Appeal Board


Rights of Appeal
Procedure on appeal
Attempts to influence Appeal Board

Part 6 - MISCELLANEOUS
28
29

Act binds the State


Act extend outside Fiji Islands
Part 7 - TRANSITIONAL PROVISIONS

30
31
32

Reference to earlier Acts etc.


Reference to Permanent Secretaries and other officers
General Orders and instructions
Part 8 REPEALS AND AMENDMENTS

33
34

Repeals and saving


Amendments

Schedule Amendments

ACT NO. 8 OF 1999

I assent

[L.S.]

K. K. T. Mara
President
[19 March 1999]

AN ACT
TO MAKE PROVISION, FURTHER TO THAT IN THE CONSTITUTION, FOR THE
PUBLIC SERVICE AND THE PUBLIC SERVICE COMMISSION FOR OTHER
SERVICE COMMISSIONS, FOR A PUBLIC SERVICE APPEAL BOARD, AND FOR
RELATED MATTERS
Enacted by the Parliament of the Fiji IslandsPart 1 PRELIMINARY

1.

Short title
This Act may be cited as the Public Service Act 1999.

Commencement
2.-(1) This Act commences on a date or dates appointed by the Minister by notice in
the Gazatte.
(2)

The Minister may appoint different dates for the commencement of different
provisions.

(3)

In appointing dates under this section the Minister must have regard to the need
by synchronise the provisions of this Act with those of the Public Finance
Management Act 1999.

Public Service 8 of 1999

Interpretation
3.

In this Act, unless otherwise stated or the context otherwise requires-

Appeal Board means the Public Service Appeal Board established by Part 5; chief
executive has the same meeting as in the Public Finance Management Bill 1999;
constitutional functions, of a service Commission, mean the functions conferred on the
Commission by the Constitution;
Constitutional Offices Commission means a person to whom a function or power of the
Commission has been delegated or subdelegated;
delegation includes a subdelegation where the power to delegate so provides;
department has the same meaning as in the Public Finance Management Act 1999;
directions means directions made by a service Commission under Section 20 of this
Act.
Disciplined Services Commission means the Commission continued in existence under
that name by section 142(c) of the Constitution;
employee means a person employed in the public service but does not include a wage
earner.
government company has the same meaning as in the Public Finance Management
Act 1999;
Judicial and Legal Services Commission means the Commission of that name
established by section 131(1) of the Constitution;
member means a member of the Appeal Board
Minister, in relation to a service Commission, means the Purchase Minister with
responsibility for that Commission;
Ministry has the same meaning as in the Public Finance Management Act 1999;
Ownership Minister has the same meaning as in the Public Finance Management Act
1999;
public service means the service of the State in any capacity, but does not include
service in(a)
an office of judge;
(b)
a judicial office that is the responsibility of the Judicial and Legal `
Service Commission;
(c)
an office in the Republic of Fiji Islands Military Forces;
Public Service 8 of 1999

(d)
(e)
(f)

the office of a member of a commission, tribunal or board established by,


or continued in existence under, the Constitution:
a statutory authority ; or
a government company;

Public Service Code of Conduct means the rules in section 6;


Public Service Commission means the Commission of that name continued in
existence by section 142(b) of the Constitution;
public service union means a trade union that is registered under the Trade Unions Act
and recognised by the relevant Commission for the purpose of collective bargaining in
relation to a group of employees;
Public Service Values means the values set out in section 4;
Purchase Minister has the same meaning as in the Public Finance Management Act
1999;
regulations means regulations made by a service Commission under this Act or section
173(1) of the Constitution;
relevant Commission in relation to an employee, means the service Commission
whose functions extend to that employee;
relevant employee, in relation to a service Commission, means an employee to whom
the functions of that Commission extend;
Senior Executive Service means the service established by section 9;
service Commission means any of
(a)
the Public Service Commission;
(b)
the Constitutional Officers Commission;
(c)
the Judicial and Legal Services Commission;
(d)
the Disciplined Services Commission;
statutory authority has the same meaning as in the Public Finance Management Act
1999;
statutory functions, of a service Commission, means the functions conferred on the
Commission by or under this or any other Act, other than the Constitution;
subordinate legislation means any instrument of a legislation character made in
exercise of a power conferred by an Act, and includes directions;
this Act includes any regulations or directions made under it;
wage earner means a person employed in the public service by reference to a rate of
remuneration or payment other than an annual one.
Public Service 8 of 1999

Part 2 THE PUBLIC SERVICE


Public Service Values
4-(1) The public service respects the values, policies, rights and freedoms set out in
the Constitution.
(2) Employment decisions in the public service are made on the basis of merit after
an open, competitive selection process.
(3) Men and women equally, and the members of all ethnic groups, have adequate
and equal opportunities for training and advancement in the public service.
(4) The public service carries out the Governments policies and programs effectively
and efficiently and with due economy.
(5) The composition of the public service reflects as closely as possible the ethnic
composition of the population, taking account, when appropriate, of occupational
preferences.
(6)

The public service provides working environment that Is free from discrimination

(7) The public service is apolitical, performing its functions in a neutral, impartial and
professional way.
(8) The public service is fully accountable, within the framework of the Constitution
and the public Finance Management Act 1999, to the Government, the Parliament and
the people of the Fiji islands.
(9) The public service is responsible to the Government in proving, frank, honest,
comprehensive, accurate and timely advise and implementing the Governments policies
and programmes.
(10) The public service has the highest ethical standards, particularly for integrity and
honesty.
(11) The public service delivers services fairly, effectively and courteously.
(12) The public service develops and maintains leadership of the highest quality,
particularly through the Senior Executive Service.
(13) The public service provides a fair, flexible workplace.
(14) The public service focuses on achieving results and managing workplace.

Public Service 8 of 1999

Regulations and directions about the Public Service Values


5.-(1) The Public Service Commission may make regulations or give within directions

(a) for the purpose of ensuring that all employees uphold the Public Service
Values; and
(b) as to the scope or application of the Public Service Values.
(2)The Public Service Values have effect subject to any regulations made or
directions given under subsection(1), including any regulations or directions
restricting the scope or application of the Public Service Values or resolving
potential inconsistencies between them.
Public Service Code of Conduct
6.- (1)
An employee must behave honestly and with integrity in the course of
employment in the public service.
(2)
An employee must act with care and diligence in the course of
employment in the public service.
(3)
An employee, when acting in the course of employment in the public
service, must treat everyone with respect and courtesy, and without coercion or
harassment of any kind.
(4)
An employee, when acting in the course of employment in the public
service must comply with all applicable Acts and subordinate legislation.
(5)
An employee must comply with all lawful and reasonable directions given
by persons in authority in the employees Ministry, department or parliamentary
body.
(6)
An employee must maintain appropriate confidentiality about dealings
that the employee has with any Minister or any member of the staff of a Minister.
(7)
An employee must disclose and take reasonable steps to avoid any
conflict of interest (real or apparent) in connection with employment in the public
service.
(8) An employee must use Government resources and assets in a proper way.
(9)A person must not, in the course of or in connection with employment in the
public service, provide false or misleading information in response to a request for
information that is made for official purpose.
(10)
An employee must not make improper use of official information or of the
employees duties status, power or authority in order to gain, or seek to gain, a
benefit or advantage for the employee or for anyone else.

Public Service 8 of 1999

(11)
An employee must not, except in the course of his or her duties as an
employee, or with the express authority of the chief executive of his or her Ministry,
department or parliamentary body, give or disclose, directly or indirectly, an
information about public business or anything of which the employee has official
knowledge.
(12)
An employee must at all times behave in a way that upholds the Public
Service Values and the integrity and good reputation of the public service.
(13)
An employee on duty overseas must at all times behave in a way that
upholds the good reputation of the State.
(14)
An employee must comply with any other conduct requirement prescribed
by regulations, specified in directions or required of the employee by his/or her chief
executive.
(15) In this section employee includes a wage earner.
Ground for discipline

7.
A breach of the Public Service Code of Conduct by an employee is a ground for
disciplinary action under the regulations of the relevant Commission or, in the case of
a person to whom Part 4 of the Constitution applies, for removal under that Part.
Responsibilities of chief executives

8-(1) A chief executive must uphold and promote the Public Service Values, and is
bound by the Public Service Code of Conduct.
(2) The chief executive of a Ministry is responsible to the relevant Minister or
Ministers concerned for the efficient, effective and economical management of the
Ministry, including any department or group of departments in the Ministry.
(3) Chief executives are collectively responsible for providing leadership of the
highest quality for the public service.
(4)

In recognition of their collective responsibility, chief executives must work


together to(a)
provide direction on the future of the public service;
(b)
motivate employees to reach their full potential; and
(c)
initiate good management practice.

Public Service 8 of 1999

Establishment of Senior Executive Service

9.-(1) This section establishes a Senior Executive Service


(2)The Senior Executive Service consists of chief executive and all employees
holding offices designated by the Public Service Commission as senior executive
offices.
(3) Before designating an office under subsection (1) the Public Service
Commission must consult the relevant Commission and the chief executive of the
Ministry, department or parliamentary body concerned.
10.

The purpose of the Senior Executive Service is to attract, develop and retain a
group of employees each of whom, within the employees Ministry, department or
parliamentary body(a)
provides at a high level one or more of the following(i)
professional expertise;
(ii)
policy advice;
(iii)
management;
(b)
promotes cooperation with other Ministries and departments and
parliamentary bodies in implementing Government policies and programs;
and
(c)
by personal example and in other appropriate ways upholds and
promotes the Public Service Values and compliance with the Public
Service Code of Conduct.
Part 3 --- PUBLIC SERVICE COMMISSION
Public Service Commissions statutory functions

11.-(1) In addition to its constitutional functions, the Public Service Commission has the
following functions-(a)

to consider and report to the Government on public service issues;

(b)

to promote and uphold the Service Values and the Code of Conduct, and
to monitor and evaluate(i) the extent to which Ministries departments and parliament
bodies have adopted the Public Service Values;
(ii) the extent to which the structure of the public service supports the
Public Service Values;
(iii) the adequacy of the systems and procedures in Ministries
departments and parliamentary bodies for ensuring compliance
with the Public Service Code of Conduct ;

Public Service 8 of 1999


(c)

to develop promote review and evaluate public service employing

policies anti practices;


(d)

to facilitate continuous improvement in human resources management


the public service;

(e)

to provide or facilitate training and career development for the public


service (including public service examinations ) and to coordinate
support service-wide training and career development opportunities in
the public service insofar as those functions are not performed by some
other body;

(f)

to contribute to, and foster, leadership in the public service;

(g)

to review, and advise the Government on the structure, size and


composition of the public service, including the creation amalgamation
and abolition of Ministries and departments,
the functions
of
departments and staffing levels in Ministries and departments

(h)

to perform in relation to employees the functions of an employer


including but not limited to(i) the classification of employees;
(ii) the duties of employees, and the places where they are to
performed;
(iii) the transfer of employees to and between
departments.

Ministries and

(iv) the setting of remuneration and other terms of employment


unless another written law confers those functions on some other
people
or body in relation to any employment or class of employee;
(i)

to ensure that adequate office accommodation is provided for the public


service ;and

(j)

to supervise physical working conditions in the public service as required.

(k)

if requested, to give advice and assistance to Ministries, departments and


other service Commissions in relation to public service issues; and

(I)

to perform any other functions given to the Commission by or under this


Act or any other written law.

(2)

The Public Service Commission must, if directed by the Ownership Minister for a
statutory authority-Public Service 8 of 1999
(a) investigate and report on the state of the statutory authority and give a

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copy of the report to the Ownership Minister, and


(b) give advice and assistance co the statutory authority in relation to-(i) its management or employment policies and practices;
(ii) training or career development for its employees.
(2) In this section-"department" includes a parliamentary body;
"employee" includes a wage earner.

Directions of Minister
12.--(1)In performing its statutory functions the Public Service Commission must,
subject to subsection (2), act in accordance with any general directions as to policy
given to it in writing by the Minister, which may include directions as to delegations of the
Commissions functions under section 16.
(2) The Public Service Commission or a delegate of the Commission is not subject to
directions by any Minister in respect of the performance of the Commissions statutory
functions in relation to a particular person.
(3) This section does not affect section 173(4) of the Constitution as regards the
constitutional functions of the Public Service Commission.
(4) In giving directions to the Public Service Commission under subsection (I) the
Minister must have regard to the need to synchronise and harmonise the provisions of
this Act with those of the Public Finance Management Act 1999.
Inquiries by Public Service Commission
13.--(1)The Public Service Commission may, on its own initiative it ii asked to do so by
the Prime Minister, conduct an inquiry into-(a)
(b)

an alleged breach of the Public Service Code of Conduct by any


employee; or
any public service employment policy or practice.

(2) For the purpose of an inquiry, the Public Service Commission, or a person
authorised by the Commission, may(a)

enter the premises of any department;


Public Service 8 of 1999

(b)

require production of, examine and copy any document in the possess
of a department;

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(c)
(d)

interview any employee; or


interview anyone else who can provide information relevant to
inquiry.

(3) Chief executives and other employees must give the Public Service
Commission any assistance it reasonably requires to conduct an inquiry.
(4) Without limiting subsection (3), the Public Service Commission may require
employee to answer any question relevant to the inquiry.
(5) Subsection (4) does not prevent an employee from asserting a claim of
privilege against self-incrimination in accordance with law.
(6) For the purpose of an inquiry under this section the Public Service
Commission has the same powers and authority to summon witnesses and to admit and
receive evidence as are given to the commissioners of a commission of inquiry by
section 9 of Commissions of Inquiry Act (Cap. 47), and sections 14 and 17 of that Act
apply, necessary changes, in relation to the powers and authority given to the
Commission by subsection.
(7) Before conducting an inquiry on its own initiative under this section in
relation,
an employee in respect of whom the functions of another service Commission extend,
the Public Service Commission must consult that Commission.
(8) In this section-"department" includes a parliamentary body;
"employee" includes a wage earner.
Annual reports by Public Service Commission
14.-(1) Within 4 months after the end of each year, the Public Service
Commission must give the Prime Minister a report on the state of the public service and
the performance of the Commission during the year.
(2) The Prime Minister must cause a copy of the report under subsection (1) to
be laid before each House of the Parliament within 14 sitting days of the House after it is
received by the Prime Minister.
(3) The requirements of this section are in addition to any reporting requirement
imposed on the Public Service Commission by or under the Public Finance Management
Act 1999.

Public Service 8 of 1999

Regulations

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15.--(1)The Public Service Commission, with the agreement of the Prime Minister, may
make regulations prescribing anything-(a)

required or permitted by this Act to be prescribed;

(b)

necessary or convenient to be prescribed for carrying out or giving effect


to this Act; or

(c)

necessary or convenient to be prescribed for carrying out its statutory


functions, or for the efficient, effective and economical management,
control and working elf the public service.

(2) Without limiting subsection (l), regulations made under it may make provision with
respect to(a)

the Senior Executive Service, including the basis on which employees in


the Senior Executive Service are to be employed;

(b)

the appointment, promotion and transfer of all employees;

(c)

the retirement, retrenchment and termination of employment of all


employees.

(d)

the conduct and discipline of all employees.

(e)

handling of grievances;

(f)

performance agreements to be entered inter by chief executives which


are consistent with the Public Finance Management Act 1999;

(g)

performance assessments of chief executives, in relation to their


performance agreements;

(h)

the contents of annual corporate plans and annual reports of Ministries


and departments in relation to personnel matters;

(i)

performance improvement programs by Ministries and departments.

(3) Regulations made under this section may also prescribe-(a)

the fees allowances and expenses to he paid to a person for carrying out
a function or duty under this Act; and

(b)

fees for appeals to the Appeal Board.


Public Service 8 of 1999

(4)

This section is in addition to the powers of the Public Commission to make


regulations under section 173(1) of the Constitution.

(5)

If regulations under subsection (2) are made relating to performance assessment

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of chief executives, they must provide: that before completing any such
assessment
relevant Commission must consult-(i)

the relevant Purchase Minster as regards the extent to which the Minister
or department met its obligations under 3 purchase agreement with
that Minister;

(ii)

the relevant Ownership Minster as regards the extent to which the


Ministry or department met its obligations under its annual corporate plan
prepared pursuant to the Public Finance Management Act 1999.

(6) In making regulations under this section the Public Service Commission in have
regard to the need to synchronise and harmonise the regulations with the
provisions of the Public Finance Management Act 1999.

(7) Before making regulations affecting employees in respect of whom the functions
of another service Commission extend, the Public Service Commission must
consult
Commission.

(8) In this section"department" includes a parliamentary body;


employee" includes a wage earner
Delegation
16.--(1) The Public Service Commission may, in writing, delegate to a member or
officer of the Commission, or the holder of a public office (within the meaning the
Constitution), any of its statutory functions or of its powers in relation to its
statutory
functions.
(2) A person to whom functions or powers are delegated under subsection (I) may,
in writing delegate any of the functions or powers to an employee (the
"subdelegate)
(3) A delegation may be made under subsection (2) only with the prior written
approval of the Public Service Commission.

(4) A function or power delegated under subsection (2) is, when performed or
exercised by the subdelegate, taken to have been performed or exercised by
the Public Service Commission.
(5) A delegation under this section continues in force despite any change in the
membership of the Public Service Commission.

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(6) A delegation under this section may be revoked or amended at any time by the
Public Service Commission
(7) All relevant written laws apply to a delegate (including a subdelegate) in the
performance of a delegated functions, or the exercise of a delegated power, as
if the delegate were the Public Service Commission.
(8) A delegation under subsection (1) may be performed or exercised only in
accordance with any conditions applying to the delegation, and a subdelegation
under subsection (2) may be performed or exercised only in accordance with
any conditions applying to the delegation under which the subdelegation was
made.
(9) This section is in addition to -(a)
(b)

the Public Service Commission's power of delegation under section 150


of the Constitution;
sections 31 A, 31B and 31C of the Interpretation Act (Cap.7).

(10) Subsections (5) to (8) apply to a delegation under section 150 of the
Constitution in the same way as they apply to a delegation under subsection
(1).
(11) Subsection (2) does not apply to delegation under section 150 of the
Constitution.
(12) In the exercise of its powers under this section the Public Service Commission
must have regard to the need to synchronise and harmonise its functions with
the
provisions of the Public Finance Management Act 1999.
(13) Before delegating any functions an employee in respect of whom the functions
of another service Commission extend must consult that Commission.
Secretary and other staff of Public Service Commission
17.--(1) There is to be a Secretary for the public service who is also the Secretary
to the Public Service Commission
(2) The Public Service Commission is also to have other staff necessary to perform
its constitutional and statutory functions.
(3) The Secretary for the public service and other Commission staff must be persons
employed in the public service
Public Service 8 of 1999

Part 4 SERVICE COMMISSIONS GENERALLY

15

Additional powers of service Commissions


18.(1) Every service Commission has the power to do everything necessary or
convenient to be done for, or in connection with, the performance of its functions under
the Constitution or this Act,
(2) The powers given to a service Commission by subsection (1) are in addition to its
powers under the Constitution, any other provision of this Act or any other written law.
(3) In the exercise of its powers and the performance of its functions every service
Commission must-(a)
comply with the requirements of section 140 of the Constitution;
(b)

synchronise and harmonise its decisions with the provisions of the Public
Finance Management Act 1999;

(c)

before taking action which would affect an employee in respect of whom


the functions of another service Commission extend, consult that
Commission.
Reports by service Commissions

19.(1) A service Commission may, at any time, five the Minister a report about any
issue relevant to its functions.
(2) A service Commission must. if asked by the Minister, give the Minister a
report about any issue relevant to its functions, but without affecting section 173(4) of the
constitution.
(3) This section is in addition to any other requirement of a written law relating
reports by service Commission.
Service Commission directions

20.--(1) A service Commission may give ii, relevant employees written directions
about anything necessary or convenient to be prescribed for carrying out its
constitutional functions or its statutory functions, or for the efficient effective and
economical management, control and working of the public service.
(2) Without limiting subsection (l), a service Commission may give written directions
about how functions or powers delegated by it are to be performed or exercised and
about any other matter with respect to which the Commission may make regulations.
Public Service 8 of 1999

(3) A service Commission's directions cannot create offences or impose penalties.


.
(4) Chief executives and other employees must comply with any directions of a
service Commission that are expressed to be binding on them.

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(5) In this section "employee" includes a wage earner.


Delegations of employment powers to chief executives
21.--(1) A chief executive is the employer of the employees in the relevant Ministry,
department or parliamentary body to the extent that-(a)

the relevant Commission delegates such rights, duties and powers as an


employer to the chief executive under the Constitution ; or

(b)

the Public Service Commission delegates such rights, duties and powers
under section 16 of this Act.

(2) Without limiting subsection (I), a chief executive has, in relation to employees
in the relevant Ministry, department or parliamentary body the rights, duties and powers
prescribed by regulations or specified in directions.
(3) If a service Commission delegates to a chief executive its rights, duties and
powers as an employer, tile chief executive must, in exercising those rights and powers
and performing those duties, comply with-(a) the requirements of section 140 of the Constitution;
(b) relevant provisions of the Public Finance Management Act 1999; and

(c) any applicable regulations.


(4) In this section employee includes a wage earner.
Improperly influencing service Commission etc.
22.--(1) A person who seeks (directly or indirectly) to improperly influence a
service Commission, a member employee, agent or delegate of a service Commission
or the Secretary for the public service commits an offence.
(2) A person who commits an offence under subsection (1) is liable on
conviction to a fine of $1,000.

Public Service 8 of 1999

Protection of members of service Commission etc.


23.--(1) This section applies to a person who is or has been a member,
employee agent or delegate of a service Commission or the Secretary for the public
service.

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(2) A person mentioned in subsection (1) is not liable in relation to an act done or
omitted to be done by the person in good faith in the performance or purported
performance of a function, or the exercise of a power, of the relevant Commission.
Part 5--PUBLIC SERVICE APPEAL BOARD
Continuation of Public Service Appeal Board
24.-- (1)This section continues in existence the Public Service Appeal Board
established by the Public Service (Amendment) Act 1998 (No. 58 of 1998).
(2) The Appeal Board consists of the following members-(a)
a chairperson appointed by the Minister after consultation with the
Chairperson of each service Commission and with the public
service unions;
(b)

a member appointed by the Minister on the joint nomination of the


Chairpersons of all the service Commissions; and

(c)

a member appointed by the Minister on the joint nomination of the


public service unions.

(3) A person who holds a public must not be appointed as a member.


(4) Subject to this section, a member holds office for 3 years but is eligible for
reappointment.
(5)The term of appointment of a member expires upon his or her reaching the
age of 65, and a person must not be appointed or reappointed if he or she has reached
that age.
(6) The Minister may terminate the appointment of a member for misbehaviour
physical or mental incapacity.
(7) If a member--(a)

becomes bankrupt, applies to take the benefit of a law for the


relief of bankrupt or insolvent debtors, compounds with his or her
creditors or makes an assignment of his or her remuneration for
their benefit;

Public Service 8 of 1999


(b)

is absent, without reasonable excuse, from 3 consecutive


meetings of the Appeal Board; or

(c)

has, in the Minster's opinion, failed to perform his or her functions


member satisfactorily for a significant period,

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the Minister must terminate the member's appointment


(8) A member may, resign by notice in writing to the Minister.
Rights of appeal
25.--(1) Subject to this section every employee, other than an employee on
probation, may appeal to the Appeal Board under this Part against-(a) the promotion of any employee, or the appointment of any person who
is not an employee to a position in the public service which the
appellant, had applied by way of promotion.
(b) the taking of disciplinary action against the appellant; or
(c)

the transfer of the appellant from one district to another within the Fiji
Islands.

(2) An appeal under paragraph (1)(a) lapses if, the appeal is determined-(a)
(b)
(c)

the appellant resigns or retires or his or her employment in the public


service is lawfully terminated;
the promotion or appointment, that is the subject of the appeal is
cancelled; or
the officer whose promotion, or the person whose appointment is the
subject of the appeal dies or vacate, renounces or becomes incapable
taking up the position.

(3) Notwithstanding subsection (1)(b), an employee does not have a right to


appeal against disciplinary action against the employee for a refusal to comply with or
obey an instruction or order transferring the employee from one district to another within
the Fiji Islands if the employee has already had an appeal against the transfer
dismissed.
(4) An appeal does not lie against the promotion of an employee, or the
appointment of a person, to an office or position specified in an order made by the Prime
Minster, however that office positions is for the time being designated.

Procedure on appeal
26.--(1) Notice of an appeal under this Part, setting out the grounds of the
appeal, must be lodged with the Secretary of the Appeal Board-(a)
within 21 days after the date on which the decision was published
or notified to the appellant; or
(b)
within any further time allowed by the Appeal Board sufficient
reason being shown by the applicant.

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(2) An appellant must, when lodging an appeal with tile Secretary of the Appeal
Board, deposit with the Public Service Commission the prescribed fee, which must be
refunded if the appeal is allowed
(3) For the purpose of determining an appeal, the Appeal Board has the same
power and authority to summon witness and to obtain evidence as are conferred upon
commissioners of a Commission of Inquiry by section 9 of the Commissions of Inquiry
Act, and section 14 and 17 of the Act apply, with necessary changes, in relation to the
powers and authority vested in the Appeal Board by this Part.
(4) In an appeal the onus of proof rests with the appellant.
(5) Proceedings of the Appeal Board are not open to the public but a person
authorised by the Board may attend a hearing or part of a hearing.
(6) At the hearing of an appeal-(a)
the appellant is entitled to he present and may be represented by a
legal practitioner or by any other person; and
(b)
the officer or person against whose promotion or appointment the appeal
has been lodged is entitled to he heard in such manner as the Appeal
Board thinks fit and may be represented by a legal practitioner or
other person.
(7) The Appeal Board may direct that 2 or more particular appeals are to be
together.
(8) In performing its functions the Appeal Board must endeavor to fairness to the
to the parties with economy, informality and speed.
(9) In the conduct of an appeal, the Appeal Board is not bound by the procedure
legal forms and rules of evidence of a court of law but should(a)
accord natural justice to the parties to the appeal,
(b)
keep a written record of its proceedings; and
(c)
give reasons for its decision on the appeal.
(10) The Appeal Board may allow or disallow an appeal by an employee and the
relevant Commission must implement the decision.
(II) If an appeal by an employee under section 25(1)(a) is allowed, the relevant
Commission must forthwith appoint the appellant to the position.
Public Service 8 of 1999
(12) The Appeal Board may, at any time, disallow an appeal without hear
it, or without hearing it further, on the ground that it is frivolous or vexatious or cannot
succeed.
Attempts to influence Appeal Board
27.-- (1) Except as provided in subsection (2), a person who attempts to
influence the relation to Appeal Board or a member of the Appeal Board in respect of an
appeal commits an offence and is liable on conviction to a fine of $1.000.

20

(2) Nothing in subsection (1) prohibits a person from giving information or making
representations in respect of an appeal at the request or invitation of a service
Commission or the Appeal Board, or a witness, the appellant or the representative of a
party at a hearing before the Appeal Board.
Part 6 --MISCELLANEOUS
Act binds the State
28. This Act binds the State.
Act extends outside Fiji Islands
29. This Act extends to acts and omissions outside tile Fiji Islands.

Part 7--TRANSITIONAL PROVISIONS


References to earlier Acts etc.
30.--(1) Unless the context otherwise requires, a reference in an Act or
subsidiary legislation to the Public Service Act (Cap. 74), the Public Service Decree
1988 or the Public Service Decree 1990 is to be construed as a reference to this Act.
(2) Unless the context otherwise requires, a reference in an Act or subsidiary
legislation to subsidiary legislation under the Public Service Act (Cap. 74), the Public
Service Decree 1998 or the Public Service Decree 1990 is to be construed as a
reference to the appropriate subsidiary legislation under this Act.
(3) The Prime Minister may by order modify or adapt references in the Act or
Decrees mentioned in subsection (1) and (2).
References to Permanent Secretaries and other officers
31. Unless the context otherwise requires, a reference in an Act or subsidiary
legislation to(a)
the Permanent Secretary of a Ministry is to be construed as a
reference to the chief of a Ministry.
(b)
the Permanent Secretary of a particular Ministry is to e
construed as a reference to the chief executive of that Ministry;
(c)
an officer of the public service is to e construed as a references
to an employee as defined in section 3 of this Act;
(d)

the Secretary of the Public Service Commission or to the


Secretary to Government and for the Public Service -- is to be
construed as a reference to the Secretary for the Public Service.

General orders and instructions


32.--(1) General orders made by the Public Service Commission and in force
immediately before the commencement of this section continue to have effect as if they
were directions given by the Commission under section 20.

21

(2) Instructions issued by the Public Service Commission and in force


immediately before the commencement of this section continue to have effect as if they
were directions given by the Commission under section 20.
Part 8--REPEALS AND AMENDMENTS
Repeals and savings
33.--(1)The following are repealed-(a)

Public Service Act (Cap. 74);

(b)

Public Service Decree 1988;

(c)

Public Service Decree 1990;

(2) An appeal to the Appeal Board in progress at the commencement of this


section must continue as if brought under Part 4 of this Act
Amendments
34. The Acts mentioned in the Schedule are amended in the manner specified.

22

Public Service 8 of 1999


SCHEDULE
(Section 34)

AMENDMENTS

INTERPRETATION ACT (Cap. 7)


Section 2 (Interpretation) -- Delete "Permanent Secretary in the definition of secretary
in subsection (1).
HIGHER SALARIES COMMISSION ACT (Cap. 2A)
Section 6 (Disqualification for membership)-- delete subsection (1) (c) and substitute-"(e)

he is a member of a commission established by, or continued in existence


under, the Constitution (except the Public Service Commission)..

Section II (Functions of Commission)Delete subsection (1) (c) and substitute"(c)

to consider and determine the salary of the chief executive of every


Ministry, department and parliamentary body, and the salary of the holder
of every public office (except a public office to which section 183 (1) of
the Constitution applies) that the Commission prescribes after
consultation with the Public Service Commission;".
POLICE ACT (Cap. 85)

Section 14 (Discharge)-- Delete "Police Service Commission" from subsection (1) (c)
and substitute "Disciplined Services Commission".
Section 32 (Trial of offences against discipline)-Delegate "Police Service] Commission
from subsection (I) and substitute "Discipline Services Commission".
Section 37 (Dismissal and reduction in rank of police officers convicted by any court) -Delete "Police Service Commission" and substitute "Discipline Services Commission".
PRISONS ACT (Cap 86)
Section 8 (General powers of Commissioner)-- Delete "Public Service Commission
subsection (1) and substitute Disciplined Service Commission".
Section 11 (Appointment of officers)-- Delete "Public Service Commission
subsections (1) and (2) and substituting "Disciplined Services Commission".
Section 14 (Prolongation of service in case of war etc) -- Delete "Public Service
Public Service 8 of 1999

23

Commission" and substitute "Disciplined Services Commission".


Section 15 (Discharge)--Delete "Secretary of the Public Service Commission
in subsection (3) (a) and substitute "Disciplined Services Commission".
Section 20 (Officers not to engage in private employment or to receive gratuities
Delete "Public Service Commission" in paragraph (a) and substitute "Disciplined
Services Commission".
Section 31 (Review by Commissioner) Delete Public Service Commission in
subsection (3) and substitute "Disciplined Services Commission".
Section 32 (Special proceedings in certain cases)--Delete "Secretary of the Public
Service Commission" in paragraph (a) and substitute "Disciplined Services
Commission.

Passed by the House of Representatives this 22nd day of February 1999.


Passed by the Senate this 4th day of March 1999.

Price:77c

PIO B. TIKOISUVA, Government Printer, Suva, Fiji 1999

FIJI ISLANDS GOVERNMENT GAZETTE SUPPLEMENT


No.21

st

FRIDAY, 21 MAY

1999

24

386/Z/991,250

[LEGAL NOTICE No. 47]


PUBLIC SERVICE ACT 1999
(Act NO. 8 OF 1999)

COMMENCEMENT NOTICE
PURSUANT to section 2(1) of the Public Service Act 1999, I appoint 1st of July 1999 as
the date on which the Act comes into force.
Dated this 13th day of May 1999.
S. L. RABUKA
Prime Minister
[LEGAL NOTICE NO. 48]
PUI3LIC SERVICE REGULATIONS 1999
ARRANGEMENT OF REGULATIONS
Part 1PRELIMINARY
1.
2.
3.
4.

Citation
Commencement
Interpretation
Interpretation Act
Part 2--APPOINTMENTS, PROMOTIONS AND TRANSFERS
Division 1: Engagement and promotion

5.
6.
7.
8.

Appointment and promotion based on merit


Dual appointments
Contract employment
Temporary employment
Divisions 2: Probation

9.
10.
11.
12.

Appointments to he on probation
Probation reports
Confirmation of appointments etc.
Automatic confirmation.

Division 3: Transfers
13. Notice of transfer etc.
Part 3--RETIREMENT
14. Retirement age

25

15. Compulsory retirement or retirement of excess employees


16. Compulsory retirement for ill-health
17. Compulsory retirement in the public interest
Part 4--CONDUCT
18. Engaging in another occupation for reward
19. Holding office in public authority
20. Absence without leave
21. Employee to report legal proceedings
Part 5--DISCIPLINE
22. Disciplinary action
23. Suspension from duty
Part 6--ANNUAL REPORTS, CORPORATE PLANS AND PERFORMANCE
IMPROVEMENT PROGRAMS
24. Annual reports
25. Corporate plans
26. Performance improvement programs
Part 7--GRIEVANCES
27. General policy
28. Procedures for grievances
Part 8--MISCELLANEOUS
29. Written directions
30. Production of documents etc.
Part 9--REPEALS AND TRANSITIONAL
31. Repeals
32. Contract employment
33. Temporary employment
34. Transfers
35. Probation
36. Retirement age
37. Discipline
38. Personal grievances
39. Modification and adaptation

CONSTITUTION AMENDMENT ACT 1997


PUI3LIC SERVICE ACT 1999

PUBLIC SERVICE (GENERAL) REGULATIONS 1999

26

IN exercise of the powers conferred on it by section 173 (1)of the Constitution an section
15 of the Public Service Act 1999, and with the agreement of the Prime Minister, the
Public Service Commission makes these Regulations.
Part 1--PRELIMINARY
Citation
1. These Regulations may be cited as the Public Service (General) Regulations, 1999.
Commencement
2. These Regulations commence on the date on which Part 3 of the Act commences.
Interpretation
3 In these Regulations, unless the context otherwise requires-"Act" means the Public Service Act 1999;
"Commission" means the Public Service Commission;
"local authority" means a council of a city, town or district;
"station" includes an area declared to be a station by the Commission;
"transfer" does not include tile movement of art employee between positions in
the same Ministry or department unless the movement requires the employee to
change his or her residence from one station to another.
Interpretation Act
4. The Interpretation Act (Cap. 7) applies to these Regulations in the same way as it
applies to every other written law within the meaning of that Act.
Part 2--APPOINTMENT PROMOTIONS AND TRANSFERS
Division 1: Appointment and promotion
Appointment and promotion based on merit
5.--(1) The appointment or promotion of a person to an office pursuant to section 147(1)
of the Constitution must be made on the basis of merit after all open, competitive
selection and in accordance with section 140 of the Constitution.
(2) An appointment or promotion may only be made if(a)
the vacancy in the office, or a vacancy in an office with the same duties,
notified in a Public Service Official Circular within the last year as open
to any citizen of the State;
(b)

an assessment has been made of the relative suitability of the candidates


Ministry or department. duties, after interview or using another
competitive selection process;

(c)
the assessment was based on the relationship between the candidate's
work- related qualities and the work-related qualities genuinely required for the
duties;

27

(d)

the assessment focused on the relative capacity of the candidates to


perform the duties.

(3) The following work-related qualifies may be taken into account in making assessment
referred to in subregulation (2)(a)
skills and abilities;
(b)

qualifications; training and competencies;

(C)

standard of work performance;

(d)

capacity to perform at the level required;

(e)

demonstrated potential for further development;

(f)

ability to contribute to team performance.

(4) Subregulation (3) does not prevent any other relevant matter being taken into
account.
(5) The Commission may by directions made under section 20 of the Act provide
that this regulation does not apply, or applies with specified changes, to-(a)

the appointment or promotion of a wage earner; or

(b)

the appointment of a person to be employed on a contract or to perform


duties temporarily in a Ministry or department.

(6) In this regulation, vacancy includes a vacancy that has not commenced and a
prospective vacancy
Dual appointments
6. If a chief executive of a Ministry or department (the first Ministry or department) is also
appointed as chief executive of another Ministry or department, the chief executive does
not merely because of the additional appointment cease to be the chief executive of the
first Ministry or department.
Contract employment
7. The Commission may em ploy a person on a contract to perform duties in the Public
Service for fixed term.

Temporary employment
8.--(1) The Commission may employ a person on a contract to perform duties in a
Ministry or department.
(2) A person may he employed under subregulation (1) only if the Commission is
satisfied that-(a)
the employment is necessary for the efficient operation of the Ministry or

28

department, and assistance in temporarily performing the duties cannot


conveniently be given by another Ministry; or
(b)

the person should not be appointed to an office in the public service


because of a physical or mental incapacity or a medical condition.

(3) A person employed under this regulation is to be paid at a rate, and is subject to
other terms and conditions of employment, decided by the Commission.
Division 2: Probation
9.--(1) The appointment of a person to the public service as an employee is, in the
first instance, an appointment on probation.
(2) The period of probation is 12 months.
(3) The Commission may confirm the appointment of a person before the end of the
period of probation.
Probation reports
10.--(1) In respect of an employee on probation-(a)
a report about the employee's service must he made to the Commission
by the employee's Ministry or department 6 months before the end of the
period of probation; and
(b)

another report about the employee's service must be made by the


employee's Ministry or department one month before the end of the
period of probation.

(2) A report under subregulation (1) need not be made if the employee's appointment
has already been confirmed by the Commission.
(3) The report mentioned in subregulation (i) (b) must include a recommendation
that-(a)
the employees appointment be confirmed;
(b)
the period of probation be extended; or
(c)
the employees appointment be added.
(4) A recommendation mentioned in subregulation (3) (b) or (c) may he made about
an employee only if-(a)
the employee has been told of the proposed recommendation;
(b)
the employee has been given a reasonable opportunity to state his or her
views about the recommendation; and

(c)

any views stated by the employee have been considered in making


the recommendation.

Confirmation of appointment etc.


11.--(1) After considering the probation reports made under regulation 10 in respect of

29

an employee, the Commission must decide whether it is satisfied that the employee's
service has been satisfactory.
(2) The Commission must confirm the appointment of an employee on probation if(a)
the Commission is satisfied that the employee' s service has been
satisfactory and
(b)
the employee has passed any examinations required by that
Commission.
(3) If the Commission does not confirm the appointment of an employer on probation
the Commission may(a)
extend the employee's period of probation by not longer than 6 months; or
(b)
end the appointment.
(4) One month before the end of any extended period of probation impose on an
employee under subregulation (3), a report about the employee's service must be made
to the Commission by the employee's Ministry or department.
(5) The report must include a recommendation that(a)
(b)

the employee's appointment be confirmed; or


the employee's appointment be ended.

(6) After considering the report made under subregulations (4) and (5), the Commission
must -(a)
confirm the appointment; or
(b)
end the appointment
(7) Confirmation of an appointment must be in writing, unless the appointment
automatically confirmed under regulation 12.
Automatic confirmation
12.(1) If the appointment of a person to the public service has not been confirmed or
ended within I8 months after the person's appointment, the appointment of the person is
automatically confirmed at the end of that period.
(2) This regulation has effect ii-respective of anything in regulation 10 or 11.
Division 3; Transfers
Notice of transfer etc.
13. The Commission may transfer an employee without the employee's agreement only
if the Commission has

(a)
(b)
(c)

given the employee 28 days written notice of the transfer;


given the employee an opportunity to state his or her views about the
transfer; and
considered any views stated by the employee.
Part 3RETIREMENT, RETRECHMENT AND TERMINATION

30

Retirement age
14.--(1) An employee must he re tired from public service on reaching 55 years,
unless the Constitution or any other written law specifies a different age in respect of any
employee.
(2) Subregulation does not apply to an employee if the Commission decides that it is
in the interest of the public service that the employee not be retired.
(3) An employee retired under subregulation (1) may after the retirement be employed
under regulation 7 or 8.
(4) This regulation does not prevent an employee from retiring-(a)
at age when all employee can lawfully retire under any written law relating
to the grant of pensions gratuities or compensation;
(b)

at another age with the written approval of the Commission.

Compulsory retirement or retrenchment of excess employees


15. The Commission may retire or retrench an employee from the public service if the
Commission is satisfied that tile employee is excess to the retirements of the employee's
Ministry or department because-(a)
the Ministry or department employs more employees than it needs for the
effective, efficient, economical and appropriate performance of its
functions;
or
(b)
the duties performed by the employee are no longer required.
Compulsory retirement for ill-health
16.(1) The Commission may retire an employee from the public service if the
Commission is satisfied that the employee is unable to perform his of her duties, or any
other available duties appropriate to the employee' s classification, because of physical
or mental incapacity.
(2) For the purpose of subregulation (1), the Commission may require an employee to
undergo examination by a medical board consisting of 3 members each of whom is a
qualified medical practitioner.

(3) Retirement of an employee under this regulation does not take effect until the day
immediately after the day when the employee exhausts any sick leave credit to which
the employee is entitled before retirement.

Compulsory retirement or termination in the public interest


17.(1) The Commission may retire an employee from the public service, or terminate
an employee' s employment, if the Commission is satisfied that the retirement or
termination is in the public interest.
(2) The Commission may take action under this subregulation (1) only if-

31

(a)

(b)

the Commission has considered a report from the employee's Ministry


department that includes a recommendation that the employee be retired
or the employee's employment terminated;
the employee is given a reasonable opportunity to state his or her view
about the recommendation; and

(C)

when deciding if the retirement or termination is in the public interest the


Commission considers -

(i)
(ii)

the report made under paragraph (a);


any views of the: employee about the recommendation state by the
ministry or department; and
any other relevant circumstances.

(iii)

Part 4CONDUCT
Engaging in another occupational reward
18. An employee must not engage in any occupation for reward outside the public
service without the written agreement of the Commission.
19. An employee must not accept or continue to hold an office in a local authority
without the written agreement of the Commission .
Absence without leave
20.(1) This regulation applies to an employee who is absent from duty without leave
d0es not have a reasonable excuse for the absence.
(2) The employee is not entitled to remuneration for the period of the absence.
(3) If, within 7 days of the beginning of the absence, the employee does not tell the
Commission the reason for the absence and the expected date of his or her return to
duty, the employee is taken to have resigned from he public service and forfeits all rights
and entitlements in relation to the employees public service employment.
(4) The Commission may decide that (a) subregulation (3) does not apply to the employee; or
(b) subregulation (3)applies to the employee, but the employee does not forfeit
all or particular rights and entitlements in relation to the employee' s public service
employment.
(5) This regulation does not prevent the employee from being disciplined under
these regulations for the absence.

Employee to report legal proceedings


21. An employee who becomes subject to criminal proceedings in the Fiji Islands
or elsewhere for an offence that carries a penalty of imprisonment in the Fiji Islands must
immediately and in writing inform the chief executive of his or her Ministry or department.
Part 5-DlSClPLlNE

32

Disciplinary action
22.(1) If the Commission it; satisfied that the employee has breached the Public
Service Code of Conduct, the Commission may(a)
terminate the employee's employment;
(b)
reduce the employee's grade;
(c)
transfer or redeploy the employee to other duties;
(d)
defer a merit increase in remuneration for the employee for a specified
period;
(e)
reduce the level of the employee's remuneration;
(f)
impose a penalty of not more than $500; or
(g)
reprimand the employee.
(2) In deciding whether an employee has breached the Public Service Code of
Conduct and if so what disciplinary action should be taken against the employee, the
Commission must comply with the principles of natural justice.
(3) Without limiting subregulation (2), the Commission must
(a)
allow the employee a reasonable opportunity to present information and
to his or her views about whether the employee has breached the Public
Service Code of Conduct and, if so, what disciplinary action should be
taken against him or her; and
(b)
consider any information presented, and any views stated, by the
employee.
(4) In this part, "employee" includes a wage earner.
Suspension from duty
23.(1) The Commission may suspend an employee from duty if the Commission
believes that-(a)
the employee has breached the Public Service Code of Conduct; and
(b)
the proper management of the employee's Ministry or department may
prejudiced if the employee is not suspended.
(2) The Commission may cancel a suspension at any time.
(3) An employee suspended from duty under subregulation(1) is not entitled to
remuneration for the period of suspension.
(4) The Commission may decide that an employee who is suspended from duty is
entitled to all part of the remuneration payable for all or part of the period of suspension.

Part 6--ANNUAL REPORTS CORPORATE PLANS AND PERFORMANCE


IMPROVEMENT PROGRAMS
Annual reports
24.(1) This regulation applies to any report that the chief of a executive of a Ministry
or department is required, under any written law, to give to the Purchase Minster about
the performance of the Ministry or department for a particular year.

33

(2) A report referred to in subregulation(1) must include in respect of the relevant


year (a)
all evaluation of the extent to which the Ministry or department has
incorporated the Public Service Values;
(b)
an evaluation of the adequacy of systems and procedures in the Ministry
or department for ensuring compliance with the Public Service Code of
Conduct;
(c)
an evaluation of the handling of grievances in the Ministry or department
during the year;
(d)
details of initiatives in employment policies and practices in the Ministry or
department during the year; and
(e)
an analysis of trends in the size, structure and composition of the Ministry
or department
(3) Subregulation (2) does not limit the matters that must or may be included in a
report under subregulation (1).
(4) This regulation is in addition to and does not alter, any reporting requirements
under the Public Finance Management Act 1999.
Corporate plans
25.--(1) This regulation applies to any corporate plan that a chief executive of a
Ministry or a department is required, under any written law, to agree with the Ownership
Minister.
(2) The corporate plan must include details of human resources and employee
relations strategies.
(3) This regulation is in addition to, and does not alter, any reporting requirements
under the Public Finance Management Act. 1999.

Performance improvement programs


26.--(1) The chief executive of each Ministry, and each department, must establish a
performance improvement program for his or her Ministry or department.
(2) The performance improvement program established under subregulation (1) should
aim to foster a high performance culture in the Ministry or department by-(a)
improving communication between supervisors and employees;
(b)

providing employees with regular feedback about their performance;

(c)

providing a good understanding of work responsibilities and results


expected to be achieved;
identifying employees training and development needs and ways these
can be met;
providing a method for deciding merit pay; and
establishing effective processes for managing poor performance.

(d)
(e)
(f)

34

(3) The performance improvement program should provide for


(a)
the development of performance expectations (which may be in the form
of a of performance agreement) and appropriate performance
assessment criteria;
(b)
review of performance between an employee and his or her supervisor,
and
(c)
a regular assessment cycle that provides for
(i)
review of an employee's overall performance during the cycle; and
(ii)
consideration an employee's training and development needs.
(4) Processes for managing poor performance as mentioned in subregulation (2)(f)
should -(a)
be fair, streamlined and efficient;
(b)
ensure that an employee is given a reasonable opportunity to improve;
(c)
balance the needs of the Ministry or department and the employee;
(d)
be consistent with any applicable laws about discrimination, record
and privacy;
(e)
ensure that an employee is given full information about job requirements,
performance expectations, deficiencies in his or her performance and
possible consequences.
Part 7--GRIEVANCES
General policy
27. Chief executives should achieve and maintain workplaces that encourage
productive and harmonious working environments and that are able to deal with
employees' concerns quickly and fairly.
Procedures grievances
28.(1) A chief executive must put in place, in his or her Ministry or department,
appropriate procedures for employees to seek review of action that they consider
adversely affects their employment.
(2) The procedures referred to in subregulation (1) must establish an appropriate
balance between the needs of the employee for fair review, and the needs of the
Ministry or department in achieving results and managing performance.
(3) If a Ministry includes a department-(a)
the head of department need not put in place procedures under this
regulations for a department if the Secretary of the Ministry has put in
place procedures that cover the department;
(b)
the procedures put in place by the Secretary of the Ministry under this
regulation need not cover the department if the head of department has
put in place procedures for the department.
(4) In this regulation, action includes refusal or failure to act.
Part 8--MISCELLANEOUS
Written direction s
29. The contents of a written direction or instruction issued under section 20 of the Act

35

are deemed to have been communicated to an employee when the direction is published
in a public service circular or failing any such publication, when it has otherwise been
brought to the personal notice of the employee.
Productions of documents etc.
30.--(1) An employee must if required by the Commission, give the Commission any
information or official document relevant to the functions of the Commission.
(2) An employee must, if required by the Commission, attend before the Commission
to give information about anything relevant to the functions of the Commission.
(5) In this regulation, employee includes a wage earner.
Part 9--REPEALS AND TRANSITIONAL PROVISIONS
Repeals
The following Regulations are repealed-(a)
Public Service Commission (Constitution) Regulations 1990;
(b)
Public Service Commission (Personal Grievance Procedure Regulations
1990.
(c)
Public Service (Statutory) Regulations 1990.
Contract employment
32. A person who is employed on a contract by the Commission immediately before
the commencement of these Regulations continues to be employed by the Commission
under the contract.
Temporary employment
33 A person who is temporarily employed in a Ministry or department
immediately before the commencement of these regulations continues to be temporarily
employed in the Ministry or department as if the person had been temporarily employed
by the Commission under these Regulations.
Transfers
34. Regulations 19 of the Public Service Commission (Constitution) Regulations 1990
continues to apply to a person if an order was made under that regulation for the transfer
of the person.
Probation
35. Regulations 21 to 25 of the Public Service Commission (Constitution) Regulations
1990 continue to apply to an officer first appointed to the public service before the
commencement of this regulation if the officer's appointment had not been confirmed or
terminated before the commencement.

Retirement age
36 A decision made under regulation 28 of the Public Service Commission (Constitution) Regulations 1990 to retain the services of a person continues to have effect after
the commencement of this regulation as if it were a decision made by the Commission
under the regulation 14 (2) of these Regulations.

36

Discipline
37. Part V of the Public Service Commission (Constitution) Regulations 1990
continues to apply to a disciplinary offence (within the meaning of those Regulations)
committed before the commencement of these Regulations.
Personal grievances
38. The Public Service (Personal Grievance Procedure) Regulations 1990 continue to
apply to a personal grievances (within the meaning of those Regulations) submitted
under those Regulations and not finally dealt with before the commencement of these
Regulations.
Modification and adaptation
39. The Commission may give directions modifying or adapting any of the Regulations
mentioned in regulation 31 which by virtue of regulations 34 to 38 continue to apply after
the commencement of these Regulations.
Made at Suva this 6th day of May 1999.

S WAQAIVAVALAGI
Chairman,
Public Service Commission

A.Jale
Secretary,
Public Service Commission

[LEGAL NOTICE No. 49]


PUBLIC SERVICE ACT 1999
(Act No. 8 OF 1999)

PUBLIC SERVICE (APPEAL) REGULATIONS 1999


IN exercise of the powers conferred on it by section 15 of the Public Service Act 1999,
and with the agreement of the Prime Minister, the Public Service Commission makes the
following Regulations-Part I--PRELIMINARY
Citation and commencement
1.--(1) These Regulations may be cited as the Public Service (Appeal) Regulations
1999.
(2) These regulations come into force on the date of commencement of part 5 of the
Public Service Act.

37

Interpretation
2. In these Regulations
"Chairperson" means the Chairperson of the Appeal Board appointed under
section 24(2) of the Act;
"Secretary" means the Secretary of the Appeal Board;
"relevant service Commission" means the service Commission against whose
decision an appeal is brought;
"respondent" in the case of an appeal in respect of a promotion or appointment,
means the person against whose promotion or appointment the appeal has
been lodged
Part II--PROCEDURE
Appeals procedures
3. The Public Service Appeal Board meets at times or times and in places as fixed by
the Chairperson The Chairperson must ensure meetings are so convened that appeals
are heard expeditiously.
Record book
4.--(1) A record book must be kept in which of all particulars proceedings of the Board
are recorded.
(2) The record of the proceedings of the Board must be confirmed no later than its
next meeting, and when confirmed must be signed by the Chairperson.
(3) The record book constitutes the written record of proceedings required by section
26(9)(b) of the Act.
Lodging of appeal
5. An appeal by an employee under section 26(1) of the Act must be sent to the
Secretary in writing and must set out clearly and concisely the grounds for the
employees dissatisfaction with the decision appealed against. The Secretary must
acknowledge receipt of the appeal forthwith in writing and must forward a copy of the
appeal to the relevant service Commission and to the respondent, if any.
Notice of hearing
6.(1) If the Appeal Board is satisfied that prima facie grounds for appeal exist, and
that the appeal is not frivolous or vexatious as mentioned in section 26(12) of the Act,
the Secretary must as soon as practicable formally accept the appeal and advise in
writing the appellant, the relevant service Commission and the respondent, if any, of the
time and place fixed for the hearing.
(2) The notice given to the appellant and respondent, if any, must be by registered
post and must give sufficient time to allow for transmission of the notice of acceptance
and for the appellant and respondent, if any, to travel to the hearing.

38

Appellant and respondent may give evidence


7. The Board may neat the appellant and respondent if any, as witnesses in order to
admit and receive evidence under the powers conferred upon it by section 26 of the Act.
Documentary evidence
8. In the case of an appeal against a penalty imposed for a disciplinary Offence, any
documentary evidence to be considered by the Board which is additional to that
produced at the disciplinary inquiry must be first supplied to, or made available to, the
appellant or the relevant service Commission, as the case may he.
Affidavit evidence
9.--(1) Where the evidence of a witness is required and his or her attendance is in the
opinion of the Chairperson impossible or possible only inconveniently, the Chairperson
may authorise that an affidavit concerning the matter under appeal be sworn before a
Commissioner of Oaths and submitted in evidence.
(2) Nothing in this regulation prevents the Board subsequently summoning the witness
to attend a hearing.
Want of prosecution
10. If the appellant or his or her representative fails to appear at the hearing
the appointed time the Board may dismiss the appeal for want prosecution.

Decision on appeal
11.(1) The Secretary must, as soon as possible after an appeal has been
considered forward the decision of the Board with reasons in writing to all parties to the
appeal.
(2) A decision of the Appeal Board must be by a majority of the members
constituting the Appeal Board.
Part III--FEES AND EXPENSES
Fee on appeal
12.--(1) The fee for lodging an appeal is $200 which must be deposited with the
Secretary when die appeal is sent under regulation 5.
(2) Section 26(2) of the Act applies in respect of refunds fees.
Expenses of witness
13.--(1) Witnesses called by the Board in an appeal are entitled to be paid
expenses.

(2) In determining the conditions or expenses payable to a witness, the Board must
be guided by the rates of expenses applicable in the public service generally,
Expenses of employees
14. The reimbursement of expenses incurred by an employee who is called upon to

39

perform any function under these Regulations other than as a witness, is limited to that
provided for in directions given under section 20 of the Act.
Expenses of parties
15.--(1) The expenses of an appellant or of his or her representative or witnesses are
not chargeable against public funds.
(2) The expenses of the relevant service Commission and of the respondent, if any,
are chargeable against public funds.
the appellant
Made at Suva this 6th day of May 1999.
S. WAQANIVAVALAGI
Chairman,
Public Service Commission

A.JALE
Secretary,
Public Service Commission

[LEGAL NOTICE NO. 50]


PUBLIC SERVICE ACT 1999
(Act No. 8 OF 1999)
PUBLIC SERVICE APPEAL (EXCLUSION) ORDER 1999
IN exercise of the powers conferred on me by section 25(4) of the Public Service Act
1999, I specify the following as offices or positions in respect of which no appeal against
promotion or appointment lies under Part 5 of the Act1.

The President or Vice President of the State.

2.

The to Cabinet.

3.

Any office to which section 146 of the Constitution applies.

4.

The Speaker of the House at Representatives.

5.

Agricultural tribunal.

6.

Any office of Permanent Secretary or Secretary of a Department


within the meaning of section 110 of the Constitution.

7.

Any office on the personal staff of the President of the state.

40

8.

The Secretary to the House of Representatives.

9.

The Secretary to the Senate.

10.

The office of member of any of the following-Public Service Appeal Board


Higher Salaries Commission
Commission of Inquiry
Film Censorship Board
Hotels Licensing Board
Central Liquor Board
Divisional Liquor Tribunal
Consumer Safety Committee
Engineers Registration Board
Native Land Commission
Fisheries Commission
Secretariat of the Bose Levu Vakaturaga
National Occupational Health and Safety Advisory Board
A Wages Council
Labour Advisory Board
Committee of Valuers
Land Conservation Board
National Disaster Management Board
Co-operatives Advisory Board
Co-operatives Training Institute
Surveyors Registration Board
Fiji Multi-Ethnic Cultural Council
An entity listed in Part 2 of Schedule
2 to the Public Finance Management Act 1999 as an entity
not owned by the State.

11. The following officers in tile Ministry of Foreign Affairs-High Commissioner or Ambassador
Counsellor
First Secretary.
Second Secretary
Third Secretary
12. Any office which falls within Upper Salary Range 1, 2, 3 or 4.
13. Any office which falls within the following salary ranges-Engineering
EPOI
EP02

Information Technology
ITO 1

41

ITO 2
Legal
LGO 1
LGO 2
Medical
MDO 1
MDO 2.

Made in Suva this 12th day of May I999.

S. L. RABUKA
Prime Minister

Price:77c

Pio B. TIKOISUVA, Government Printer Suva, Fiji--1999

HUMAN RIGHTS COMMISSION ACT 1999


ARRANGEMENT OF SECTIONS
SECTION

Part -1 PRELIMINARY
1.
2.
3.
4.

Short title and commencement


Interpretation
Act to bind State
Application of Act
Part II - HUMAN RIGHTS COMMISSION

5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.

Incorporation of the Commission


Functions of the Commission
Powers and duties of the Commission
Membership of the Commission
DisquaIification from office
Conditions of appointment
Functions of Chairperson
Proceedings Commissioner
Meetings of the Commission
Funds of the Commission
Adequacy of funding
Staff of the Commission

Part III - UNFAIR DISCRIMINATION

42

1445--1,250

17.
18.
19.
20.
21.
22.
23.
24.
154

Areas where unfair discrimination prohibited


Genuine occupational qualification
Genuine justification
Guidelines on genuine occupational qualification and genuine justification
Social justice and affirmative action
Victimisation
Employment applications and advertisements
Liability of employers and principals

Part IV - COMPLAINTS AND INVESTIGATIONS

25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.

Complaints about contraventions of human rights


Complaints about unfair discrimination
Discretion whether to investigate
Investigation of Commission's own motion
Letters from prisoners or patients
Investigation procedure
Conciliation
Power to require information to be provided
Disclosure of certain matters not to be required
Procedure after investigation
Functions of Proceedings Commissioner
Proceedings
Right of Proceedings Commissioner to appear in High Court
Remedies
Damages
Power to make interim order
Substantial merits, evidence and hearings
Part V- MISCELLANEOUS

42.
43.
44.
45.
46.
47.
48.
49.

Annual Report
Delegation of functions by Commission or Commissioner
Nature of delegation
Commissioners and employees to maintain secrecy
Protection from suit
Offences
Expenses and allowances
Regulations

43

ACT NO. 1O OF 1999

I assent.
[ L.S.]

K. K. T. MARA
President

[19 March 1999]


AN ACT
TO CONFER FUNCTIONS ON THE HUMAN RIGHTS COMMISSION IN ADDITION
TO THOSE IN THE CONSTITUTION, TO REGULATE ITS PROCEDURE,
AND FOR RELATED MATTERS
ENACTED by the Parliament of the Fiji Islands-Part 1 PRELIMINARY

Short title and commencement


1.(1) This Act may be cited as the Human Rights Commission Act 1999.
(2) This Act commences on a date or dates to be appointed by the Minister by notice
in the Gazette.
(3) The Minister may appoint a different date for the commencement of different
provisions .
Interpretation
2. In this Act, unless the context otherwise requires-"Bill of Rights" means the Bill of Rights contained in Chapter 4 of the
Constitution ;

"Commission" means the Human Rights Commission which was


established by section 42(1) of the Constitution and which has the

44

additional functions conferred by this Act;


Commissioner means any member of the Human Rights Commission,
except that in Part II it does not include the Chairperson;
"Constitution" means the Constitution Amendment Act 1997;
"department" means a department in the public service;
"employment" includes
(a)
(b)

(c)

(d)

the employing of an independent contractor;


the relationship between a person for whom work is
done by a contract worker pursuant to a contract and the
person who supplies that worker;
employment on he public service, including the Fiji Police
Force, the Fiji Prisons Service and the Republic of Fiji
Military Forces;
unpaid work;

"functions of the Commission'' means the functions conferred on the Commission


by section 42(2) of the Constitution, by or under this Act, or by or under
any other written law.
human rights means the rights embodied in the United Nations Covenants and
Conventions on Human Rights and includes the rights and freedoms set
out in the Bill of Rights;
"Minister" means the Minister responsible for human rights matters;
Proceedings Commissioner means the person designated as such under
section 11
"prohibited ground of discrimination means a ground set out in section 38 (2) of
the Constitution.
Act to bind State
3. This Act binds the State.
Application Act
4. This Act applies both within and outside the Fiji Islands.

Part II - HUMAN RIGHTS COMMISSION


Incorporation of the Commission
5.-(1) The Commission is a body corporate with perpetual succession and a

45

common seal, may enter into contracts, may sue and be sued in its corporate name, has
the power to acquire, hold and dispose of property both real and personal and generally
may do all such acts and things as are necessary for and incidental to the performance
of its functions by or under the Constitution, this Act or any written law.
(2) Without limiting any other provision of this Act, the Commission has the
rights, powers and privileges of a natural person of full age and capacity.
Functions of the Commission
6.-- (1) In order to ensure that it complies with the Principles Relating to the Status
and Functions of National Institutions for the Promotion and Protection of Human Rights
(the "Paris Principles") the Commission has, in addition to the functions conferred on it
by section 42(2) of the Constitution-(a)
(b)

the function of promoting and protecting the hum an rights of all


persons in the Fiji Islands; and
any other function conferred on it by or under this Act or by or
under any other written law.

(2) For the purpose of performing its functions the Commission has the powers
and duties conferred by this Act.
Powers and duties of the Commission
7.(1) The Commission has the following powers and duties-(a)

to increase general awareness of human rights, including by


making public statements and educating public opinion and public
officials, co-ordinating human rights programmes and
acting as a source human rights information;

(b)

to invite and receive representations from members of the public


on any matter affecting human rights;
Human Rights Commission10 of 1999

(c)

to consult and co-operate with other persons and bodies


the promotion and protection of human rights;

(d)

to inquire generally into any matter, including any enactment or


law, or any procedure or practice whether governmental or nongovernmental if appears to the Commission that human rights
are, or may be, infringed thereby;

(e)

to make recommendations to the Government on the desirability


of legislative, administrative or other action so as to give better
protection to human rights;

(f)

to promote better compliance in the Fiji Islands with standards laid


down in international instruments on human rights;

46

(g)

to encourage the ratification of international human rights


instruments by the State and, where appropriate, to recommend
the withdrawal of reservations entered to those instruments;

(h)

to advise the Government on its reporting obligations under


international human rights instruments and, without derogating
from the primacy of the Government's responsibility for preparing
those reports, to advise the content of the reports;

(i)

to make recommendations on the implications of any proposed


Act or regulations or any proposed policy of the Government that
May affect human rights;

(j)

to invest if allegations of contraventions of human rights and


allegations or unfair discrimination, of its own motion or an
complaints to the courts for decision;

(k)

to resolve complaints by conciliation and to refer unresolved


complaints to the courts for decision;

(l)

to advise on any human rights matter referred to it by the


Government, having regard to the available resources and
priorities of the Commission;

(m)

to publish guidelines for the avoidance of acts or practices that


may be inconsistent with or contrary to human rights;

(n)

to take part in international meetings and other activities on


human rights and to co-operate with other national, regional and
international human rights bodies.

(2) The Commission may, from time to time, in the public interests of any person
or department, publish in any manner it thinks fit reports relating generally to the
exercise of its functions or to any particular case or cases investigated under this Act.
(3) The Commission must not investigate (but may comment on) any decision by
a court of law.
Membership of the Commission
8. In advising the President as to the persons to be appointed as members of the
Commission pursuant to section 42 of the Constitution, the Prime Minister must have
regard not only to their personal attributes but also to(a)
their knowledge or experience of the different aspects of matters
likely to come before the Commission; and
(b)

the desirability of having as members of the Commission persons


with a diversity of the personal characteristics referred to in
subsection 38(2) of the Constitution
Disqualification from office

47

9. A person is not qualified to be a Commissioner if he or she is, and is deemed to


have vacated office if he or she becomes,-(a)

member of the House of Representatives or of the Senate;

(b)

a member of a local authority;

(c)

an office-holder of apolitical party;

(d)

an undischarged bankrupt or insolvent; or

(e)

a person who has been removed from public office under subsection
172(2) of the Constitution.

Conditions of appointment
10.-(1) A Commissioner must not(a)

actively engage in politics;

(b)

subject to subsection (2), engage either directly or indirectly in the


management or control of a body corporate, or of any other body carrying
on business for profit.

(2) Nothing in subsection (1)(b) prevents a Commissioner from(a)

holding office in a professional body in relation to which his or her


qualifications are relevant; or

(b)

engaging in the direct or indirect management or control of a body


corporate, or of any other body carrying on business for profit, if leave for
such engagement is granted by the Minister.

(3) The salary of a Commissioner is as prescribed by the Prescription of Salaries


Act (Cap. 2).

Functions of Chairperson
11. The functions of the Chairperson are-(a)
to chair meetings of the Commission;
(b)
to be responsible for matters of administration in relation to
the Commission;
(c)
to allocate spheres of responsibility among Commissioners;
(d)
any other functions conferred or imposed on the Chairperson by
the Constitution, this Act or any other written law.
Proceedings Commissioner

48

12.(1) The Chairperson may from time to time in writing designate a Commissioner
for the purpose of this Act.
(2) A designation under subsection (1) may operate for a specified period of
time and may either be general or specify a particular case or cases.
(3) Until a designation under subsection (1) is revoked, it continues in force
according to its terms.
(4) A designation under this section is revocable al will and no such designation
prevents the exorcise of any function by the Commission as a whole.
Meetings of the Commission
13.(1) Meetings of the Commission are to be held at such times and places
as the Commission or the Chairperson from time to time appoints.
(2) At a meeting of the Commission, the quorum necessary for the transactions of
business is the Chairperson and one Commissioner.
Funds of the Commission
14.--(1) The funds of the Commission consist of(a)
(b)

(c)

any moneys appropriated by Parliament for the purposes of the


Commission and paid to the Commission;
all other moneys lawfully received by the Commission for its purposes;
and
all accumulations of income derived from any such money.

(2) The accounts of the Commission must be audited by the Auditor General.
Adequacy of funding
15. The Minister must use his or her best endeavours to ensure that moneys
appropriated by the Parliament for the Commission under section 14(1) (a) are
adequate-(a)

for the performance of the functions of the Commission; and

(b)

to maintain the Commission's independence and impartiality.

Staff Commission
16.--(1) The Commission must appoint-(a)

a Director of the Commission; and

(b)

any other employees, including casual and contract employees,


needed for the efficient performance of the functions of the
Commission.

49

(2) The Director and other employees of the Commission are subject to the
control and direction of the Commission.
(3) The Director and other employees of the Commission hold office on terms
and conditions determined by the Commission after consultation with the Public Service
Commission.
(4) The Director of the Commission is entitled to such remuneration determined
from time to time by the Higher Salaries Commission.
Part III--UNFAIR DISCRIMINATION
Areas where unfair discrimination prohibited
17.--(1) It is unfair discrimination for a person, while involved in any of the areas
set out in subsection (3), directly or indirectly to differentiate adversely against or harass
any other person by reason of a prohibited ground of discrimination.
(2) Without limiting subsection (1), sexual harassment, for the purposes of this
section, constitutes harassment by reason of a prohibited ground of discrimination.
(3) The areas to which subsection (1) applies are-

(e)

(a)

the making of an application for employment, or procuring


employees for an employer, or procuring employment for
other persons;

(b)

employment;

(c)

participation in, or the making of an application for


participation in, a partnership,

(d)

the provision of an approval, authorisation or qualification


that is needed for any trade, calling or profession;

the provision of training, or facilities or opportunities for


training, to help fit a person for any employment;

(f)

subject to subsection (4), membership, or the making of an


application for membership, of an employers' organisation,
an employees' organisation or an organisation that exists
for members of a particular trade, calling or profession;

(g)

the provision of goods, services or facilities, including


facilities by way of banking or insurance or for grants,
loans, credit or finance;

(h)

access by the public to any place, vehicle, vessel, aircraft


or hovercraft which members of the public are entitled or
allowed to enter or use;

50

(i)

the provision of land, housing or other accommodation;

(j)

access to, and participation in, education.

(4) Subsection (3)(f) does not apply to access to membership of a private club or
to the provision of services or facilities to member of a private club.
Genuine occupational qualification
18.(1) It is not unfair discrimination in relation to any of the areas referred to in
paragraphs (a) to (e) of section 17(3) if the prohibited ground of discrimination is a
genuine occupational qualification.
(2) For the avoidance of doubt, adverse differentiation by reason of a prohibited
ground of discrimination is a genuine occupational qualification where a position is for
the purposes of an organised religion and the differentiation complies with the doctrines,
rules or established customs of the religion.
Genuine justification
19.(1) Adverse differentiation by reason of a prohibited ground of
discrimination in relation to any of the areas referred to in paragraphs (f) to (j) of section
17(3) is not unfair discrimination if there is genuine justification for the differentiation.
Guidelines on genuine occupational qualification and genuine justification
20. M, Without limiting the Commission's power to issue guidelines on any other
matter within its jurisdiction the Commission may, for the avoidance of acts and practices
which might amount to unfair discrimination, from time to time issue non-binding
guidelines on genuine occupational qualifications and genuine justification.
Social justice and affirmative action
21. A programme, whether provided by the Government or by the private sector,
designed to achieve for any groups or categories of persons who are disadvantaged
effective equality of access to the areas set out i n section 1 7(3) is not unfair
discrimination, provided complies in other respects with the Bill of Rights

Victimisation
22. It is unfair discrimination for a person while involved in any of the areas set
out 17(3) to victimise any other person on the ground that that person, or a relative
or associate of that person-(a)
intends to make use of his or her rights under this Act or the Bill
of Rights
(b)
has made use of his or her rights, or promoted the rights of some
other person, under this Act or the Bill of Rights;
(c)
has given information or evidence in relation to any complaint,
investigation or proceeding under this Act or the Bill of Rights;
(g)
has declined to do any act which would contravene this Act or the
Bill of Rights; or
(h)
has otherwise done anything under or by reference to this Act or
the Bill of Rights.

51

Employment applications and advertisement


23.(1) It is unfair discrimination

(2)

(a)

to use or circulate any form of application, or to make any enquiry


of or about any person seeking employment, which indicates, or
could reasonably be understood as indicating, an intention directly
or indirectly to differentiate adversely by reason of a prohibited
ground of discrimination; or

(b)

to publish or display, or cause or allow to allow to be published or


displayed, any advertisement or notice which indicates, or could
reasonably be understood as indicating an intention to
differentiate adversely by reason of a prohibited ground of
discrimination.

Subsection (1) does not affect the operation of sections 18, 19 and 21.

Liability of employees and principals


24.(1) Subject to subsection (3), anything done or omitted by a person as an
employee of another person is, for the purposes of this Act, to be treated as done or
omitted other person as well as by the first-mentioned person, whether or not it was
done with that other person' s knowledge or approval.
(2) Anything done or omitted by a person as the agent of another person is, for
the purposes of this Act, to be treated as done or omitted by that other person as well as
by the first-mentioned person, unless it was done or omitted without that other persons
express or implied authority, previous or subsequent
(4)

In proceedings under this Act against any person in respect of an act alleged to
have been done or omitted by an employee of that person, it is a defence for that
person to prove that he or she took all steps reasonably practicable to prevent
the employee from doing or omitting the act, or from doing or omitting as an
employee of that person acts or omissions of that description.

Part IVCOMPLAINTS AND INVESTIGATIONS


Complaints about contravention of human rights
25. Any person may make a complaint to the Commission, including a
representative complaint on behalf of other persons with a similar cause of compliant,
about a contravention or alleged contravention of human rights.
Complaints about unlawful discrimination
26. Any person may make a complaint to the Commission, including a
representative complaint on behalf of other persons with similar cause of complaint,
about unfair discrimination.
Discretion whether to investigate
27.(1) The Commission must investigate any complaint received by it, unless,
before commencing or during the investigation it decides not to do so because

52

(a)
(d)
(e)

(f)

(g)
(f)
(g)
(h)
(i)

the complaint is not within the jurisdiction of the Commission;


the complaint is trivial, frivolous, vexatious or not made in good
faith;
the complainant, or a person acting on his or her behalf, has
brought
proceedings relating to the same matter in a court or tribunal;
the complainant has available another remedy or channel of
complaint that the complainant could reasonably be expected to
use;
the complainant has not a sufficient interest in the complaint,
the person alleged to be aggrieved does not desire that the
complaint be investigated;
the complaint has been delayed too long to justify an investigation;
the Commission has before it matters more worthy of its
attention; or
the resources of the Commission are insufficient for adequate

(2) No decision by the Commission to decline, defer or discontinue an


investigation into a complaint affects the Commission' s power to inquire generally into a
of its own initiative.
Investigation of Commission's own motion
28. The Commission may investigate of its own motion any act, omission,
practice, requirement or condition which is or appears to he unfair discrimination or a
contravention of human rights or which has been referred to it by the High Court.
Letters from prisoners or patients
29. Notwithstanding any written law to the contrary (other than the Constitution),
a letter written by-(a)
(b)

a person in custody; or
a patient in a hospital,

an addressed to the Commission must be forwarded immediately, unopened and


unaltered, to the Commission by the person in charge of the place or institution where
the writer of the letter is detained or in which he or she is a patient.
Investigation procedure
30.--(1) Before investigating any matter within its jurisdiction, the Commission
must inform-(a)
(b)
(c)
(d)

the complainant (if any);


the person alleged to be aggrieved, if not the complainant
the person to whom the investigation relates; and
in relation to an investigation relation to a department the person
holding or performing the duties of the office of Secretary of the
department ,of the Commission's intention to make the
investigation.

53

(2) An investigation under this Act must be conducted in private.


(3) The Commission may hear or obtain information from any person whom the
Commission considers can assist in the investigation and may make whatever enquiries
it thinks fit,
(4) Nothing in this Act requires the Commission to hold any hearing and no
person is entitled as of right to be heard by the Commission.
(5) The Commission must not in any report make any comment that is adverse
to derogatory of any person to whom a complaint relates without-(a)
(b)

providing the person with a reasonable opportunity of being heard;


and
fairly setting out in the report the person's defence (if any).

(6) In conducting an investigation, the Commission is not hound by the strict rules
of evidence or procedure, but must act fairly at all times.
Conciliation
31.--(1) The Commission may, before commencing an investigation, or during or
after an investigation, call a conciliation conference of the parties to the conciliation by
formally requesting, by post, telephone, facsimile, electronic mail or otherwise, the
attendance of each party at a time and place specified.
(2) If a person fails to comply with a request made under subsection (1) the
Commission may issue a summons requiring the person to attend a conciliation
conference at a time and place specified in the summons.
(3) The objectives of a conciliation conference are to identify the matters at issue
between the parties and to use the best endeavours of the Commission to secure a
settlement between the parties on the matters at issue.

Power to require information to be provided


32.(1) Subject to this section and to section 33, for the purposes of an
investigation a Commissioner may, by notice in writing, require any person to furnish any
information, or to produce any document, record or thing in the possession or under the
control of that person that is in the opinion of the Commissioner relevant to the
investigation.
(2) If a Commissioner has reason to believe that a person is able to give
information relevant an investigation, the Commissioner may, by notice in writing, require
the person to attend before him or her, on a date and at the time and place specified in
the notice, to answer questions relevant to the investigation.
(3) Fur the purposes of an investigation the Commission and a Commissioner
have the same powers as a judge of the High Court in respect of the attendance and
examination of witnesses and the production of documents.

54

(4) Notwithstanding anything in any other written law (other than the
Constitution), a person is not excused from giving information, producing a document,
record or thing or answering a question when required to do so pursuant to this Act, if
the only ground for refusal is that the giving of the information, the production of the
document, record or thing or the answer to the question-(a)

(b)

would contravene a provision of a written law, would he contrary


to the public interest, or might tend to incriminate the person or
make him or her liable to a penalty; or
would disclose legal advice furnished to a Minister or a
department,

but the information, document, record, thing or answer is not admissible in evidence
against the person in proceedings other than proceedings for an offence against section
47.
(5) Subject to section 33, a person is not excused from giving information,
producing a document, record or thing or answering a question when required to do so
pursuant to this Act on the ground that-(a)
(b)
(5)

a claim of State privilege could be made in relation to the


material concerned; or
the material is commercially sensitive.

Except on the trial of any person for perjury in respect of his or her sworn or
affirmed testimony, or proceedings for an offence against section 47, no
statement made or an answer given by that or any other person in the course of
any inquiry by or proceedings before the Commission or a Commissioner is
admissible in evidence against any person in any court or at any inquiry or other
proceedings, and no evidence in respect of proceedings before the Commission
or a Commissioner must he given against any person.

Disclosure of certain matters not to be required


33.--(1) If the Attorney General certifies that the disclosure of information
concerning a specified matter (including the furnishing of information in answer to a
question or the disclosure to the Commission or a Commissioner of the contents of a
specified document or record or the production of a specified thing) would be contrary to
the public interest because it would-(a)

seriously harm the commercial interests of any person or body;

(b)

prejudice the security, defence or international relations of the


State; or

(c)

involve the disclosure of deliberations or decisions of the Cabinet


or of a committee of the Cabinet,

55

the Commission or a Commissioner cannot require a person to give information


concerning the matter, to answer questions concerning the matter or to produce the
document record or thing.
(2) The Commission must withhold publication of any written material which
comes into its possession in the course of an investigation and which is the subject of a
certificate by the Attorney General under subsection(1).
Procedure after investigation
34.--(1) After completing an investigation, the Commission must inform the
parties of the result of the investigation and whether, in its opinion(a)

the complaint does not have substance, or cannot he established


to have substance or, in relation to an investigation of the
Commission's own motion, that the matter ought not to be
proceeded with; or

(b)

the complaint has substance or, in relation to an investigation of


the Commission's own motion, that the matter ought to be
proceeded with.

(2) If the Commission is of the opinion that a complaint does not have
substance, or cannot be established to have substance, but considers nonetheless that
it may be possible to reach a settlement between any of the parties concerned, the
Commission my act as a conciliator and use its best endeavours to reach a settlement of
the compliant.
(3) If the Commission is of the opinion that a complaint does not have substance,
or cannot be established to have substance, or if the Commission pursuant to section
27(1) decides not to investigate, or investigate further, a complaint, it must inform the
complainant of the complainant's right to bring civil proceedings before the High Court-(a)

in relation to a complaint of unfair discrimination--pursuant to section


36 of this Act; of this Act;

(b) in relation to a complaint of contravention of the Bill of Rightspursuant to section 41 of the Constitution.
(4) If the Commission has investigated a complaint and is of the opinion that the
complaint has substance, it must act as conciliator in relation to the complaint and
use its best endeavours to effect a settlement in relation to the complaint.
(5) For the purposes of this section, "settlement" includes a satisfactory
assurance by the person to whom a complaint investigation relates against repetition of
the conduct that was the subject-matter of the complaint or the investigation or against
conduct of a similar kind.
(6) Whether or not it takes any of the actions referred to in subsections(2), (3)
and (4), the Commission may-(a)
advise the parties of their respective rights, including, in relation to
a complaint of contravention of the Bill of Rights, the complaints

56

(b)
(c)

(c)

right to bring proceedings in the High Court under section 41 of


the Constitution;
refer he complaint and, if it considers appropriate, the result of the
investigation to another competent authority;
make recommendations to the competent authority, proposing
amendments to or reform of any laws, regulations or
administrative provisions or practices which have created the
difficulties or hardship encountered by the complainant or the
aggrieved person;
recommend to the relevant authority, in respect of a person who in
the opinion of the Commission has contravened human rights,
either prosecution of the person or the taking of other action, and
the authority must consider the recommendation, take such action
as it deems appropriate and advise the Commission in due course
of the action it has taken.

Functions of Proceedings Commissioner


35.--(1) The functions of the Proceedings Commissioner include-(a)

in relation to a complaint or an investigation of the Commissions


own motiondeciding whether an application should be made for
an order under section 40 and, if so, making the application;

(b)

in relation to a complaint resulting from a failure by a party to


observe the terms of a settlement on a previous occasion
deciding whether to institute proceedings against the party and, if
so, instituting the proceedings;
in relation to a complaint or an investigation of the Commissions
own motion, if it appears to the Proceedings Commissioner that a
settlement has not been reached and that no action or further
action by the Commission is likely to facilitate a settlement
deciding whether to institute proceedings against the person
against whom the complaint was made or to whom the
investigation related, and if so, instituting the proceedings.

(2) The Proceedings Commissioner, must not institute proceedings against a


person referred to in paragraph (b) or (c) of subsection (1) unless the Commissioner has
given the person an opportunity to be heard.
Proceedings
36.(1) Civil proceedings in the High Court lie at the suit of the Proceedings
Commissioner against a person referred to in paragraph (b) or (c) of section 35(1) for
unfair discrimination or a contravention of the Bill of Rights.
(2) The Proceedings Commissioner may, under subsection (1), bring
proceedings on behalf of a class of persons if the Commissioner considers that a person
referred to in paragraph (b) or (c) of section 35(1) has engaged in unfair discrimination
which affects that class or has contravened the Bill of Rights in relation to that class.

57

(3) If proceedings are commenced by the Proceedings Commissioner under subsection (1), neither the complainant (if any) nor the aggrieved person (if not the
complainant) may be an original party to the proceedings, or, unless the High Court so
orders, join or be joined in the proceedings.
(4) Notwithstanding subsection (1), the complainant (if any) or the aggrieved
person (if not the complainant) may bring proceedings before the High Court if-(a)

the Commission is of the opinion that the complaint does not have
substance or cannot be established to have substance or that the
matter ought not to be proceeded with;

(b)

the Commission pursuant to section 27(1) decides not to


investigate further, a complaint; or

(c)

the Proceedings Commissioner would he entitled to bring


proceedings, but-(i)

agrees to the complainant, in the case of a complaint, or


an a aggrieved person, in relation to an investigation of the
Commissions own motions, bringing proceedings; or

(ii)

decides not to take proceedings.

(5) Nothing in this section limits the right of any person to apply to the High Court
for redress for a contravention of the Bill Rights under section 41 of the Constitution.
Right of Proceedings Commissioner to appeal in High Court
37.(1) The Proceedings Commissioner may appear and be heard in the High
Court, the Court of Appeal or the Supreme Court in relation to any proceedings under
section 36, whether or not the Proceedings Commissioner is or was a party to the
proceedings.
(2) With leave of the court, tribunal or arbitrator, the Proceedings Commissioner
may appear and be heard in relation to any proceedings before a court, tribunal or
arbitrator in which human rights are in issue.
(3) If the Proceedings Commissioner appears before any court, tribunal or
arbitrator, he or she may, unless the rules of procedure of the court, tribunal or arbitrator
otherwise provide-(a)
appear in person or by a legal practitioner;
(b)
adduce evidence and cross-examine witnesses, unless the
proceedings are by the way of appeal,
Remedies
38.(1) In any proceedings before the High Court brought under section 36 by
the Proceedings Commissioner, a complainant or an aggrieved person, the plaintiff may
seek any or all of the remedies described in subsection (2) of this section.

(2) If in any proceedings as mentioned in subsection(1) the High Court is


satisfied on the balance of probabilities that the defendant has engaged in unfair

58

discrimination or has contravened the Bill of Rights, it may grant one or more of the
following remedies-(a)
a declaration that the defendant has engaged in unfair
discrimination or has contravened the Bill of Rights;
(b)

an order restraining the defendant from continuing or


repeating the conduct complained of or causing or
permitting others to engage in conduct of the same kind or
of any similar kind specified in the order;

(c)

damages in accordance with section 39;

(d)

an order that the defendant perform any act specified in


the order with a view to redressing any loss or damage
suffered by the complainant or the aggrieved person or to
preventing conduct of a similar kind in the future;

(e)

a declaration that a contract requiring performance of


anything that constitutes unfair discrimination or
contravenes the Bill of Rights is void and unenforceable;

(f)

such other relief as the High Court thinks fit.

(3) It is not a defence to proceedings under this section that the unfair
discrimination or contravention of the Bill of Rights was uninternational or
without
(4) negligence on the part of the defendant, but the High Court must take the
conduct of the defendant into account in deciding what remedy, if any, to
grant.
(4) In any proceedings under section 36, the High Court may make such award
as to costs as it thinks fit, whether or not it grants any other remedy.
(5) If the Proceedings Commissioner is a party to proceedings, any costs in the
proceedings awarded against the Commissioner under subsection (4) must be paid by
the Commission and the Commission is not entitled to be indemnified by the
complainant or, as the case may be, the aggrieved person for such costs.
Damages
39.--(1) In proceedings under section 36 for unfair discrimination or a
contravention of the Bill of Rights, the High Court may award against the defendant in
respect of any one more of the following
(a)

pecuniary loss suffered or expense incurred by the complainant or


the aggrieved person as a result of the conduct complained of;

(b)

expenses reasonably incurred by the complainant or the


aggrieved person in seeking redress for the conduct complained
of;

(c)

loss of any benefit, whether or not of a monetary kind,

59

which the complainant or the aggrieved person might reasonably


have been expected to obtain but for the conduct complained of;
(d)

humiliation, loss of dignity and injury to feelings of the complainant


or the aggrieved person.

(2) Subject to subsection (3), the Commission must pay any damages recovered
by the Proceedings Commissioner under this section to the complainant or the
aggrieved person on whose behalf the proceedings were brought.
(3) If the complainant or the aggrieved person is an unmarried minor or a person
of unsound mind the Proceedings Commissioner may, in his or her discretion, pay the
damages to the Public Trustee or to any person or trustee corporation acting as the
trustee of the property of that person.
Power to make interim order
40.(1) In respect of any matter which is the subject of an investigation by the
Commission and in which the High Court has or may have jurisdiction, a judge may
make an interim order if he or she is satisfied that it is necessary in the interests of
justice to make the order to preserve the positions of the parties pending the result of the
investigation and the final determination of any proceedings resulting from the
investigation.
(2) An application for an interim order under subsection (1) may be made by the
Proceedings Commissioner or, in a case to which section 36 (4) applies, the
complainant or the aggrieved person.
(3) A copy of an application under subsection (3) must he served on the
defendant, who must be given an opportunity to he heard before a decision on the
application is made.
(4) If an interim order has been made, the defendant may appeal to the Court of
Appeal to rescind or vary the order, unless the order was made with the defendant's
Substantial merits, evidence and hearings
41. In any proceedings under this Act before the High Court, the court
(a)

must act according to equity, good conscience and the substantial merits
of the case, without regard to technicalities;

(b)

may receive as evidence any statement, document, information or matter


that will or might in the court' s opinion assist it to deal effectively with
the matters before it, whether or not it would be admissible but for this
section;

(c)

may, if it considers it desirable to do so


(i)

order that any hearing held by it be heard in private, either in


whole or part;

(ii)

make an order prohibiting the publication of any report or account

60

of the evidence or other proceedings before it (whether heard in


public or in private) either in whole or in part;
(iii)

make an order prohibiting the publication of any book or


document produced at the hearing.

Part V--MISCELLANEOUS
Annual Report
42.(1) Without limiting the right of the Commission to report at any other time,
the Commission must, within 3 months after the end of each financial year, furnish to the
President a report on the exercise of its functions under the Constitution and this Act
during the year, and must submit a copy to each House of the Parliament for laying
before that House and for consideration by the relevant committee (if any) of that House.

(2) Following the tabling of the Annual Report in both Houses of the Parliament,
the Commission must hold a public meeting at a time and place it fixes to discuss the
contents of the Annual Report and the carrying out of its functions during the year.
Delegation of functions by Commission or Commissioner
43.--(l) The Commission may from time to time by writing under the hand of the
Chairperson, delegate to a Commissioner any of the functions or powers of the
Commission under the Constitution or this Act, except the functions set out in section
42(2) of the Constitution or this Act, this power of delegation, and the power to make any
report under this Act.

(2) With the prior written approval of the Minister, any Commissioner may from
time to time, by writing under his or her hand, delegate to any employee of the
Commission any of the Commissioners powers under this Act, except this power of
delegation and the power to make any report under this Act.
Nature of delegation
44.--(1) The following provisions apply to a delegation under section 43-(a)

(b)

it may be made to a specified person or to the holder for the time


being of a specified office or to the holders of offices of a specified
class.
it may be made subject to such restrictions and conditions as the
Commission or Commissioner thinks fit, and may be made either
generally or in relation to any particular case or class of cases;

(c)

it is revocable at will and no such delegation prevents the


exercise of any function by the Commission or Commissioner, as
the case may be;

(d)

until revoked, it continues in force according to its terms and if, in

61

the case of a delegation by a Commissioner, the Commissioner by


whom it was made ceases to hold office, it continues to have
effect as if made by his or her successor.
(2) A person purporting to exercise any power of the Commission or of a
Commission by virtue of a delegation under section 43 must, when required to do so,
produce evidence of his or her authority to exercise the power.
Commissioners and employees to maintain secrecy
45.--(1) Subject to this section, a Commissioner or any employee of the
Commission who, either directly or indirectly and either while remaining or after ceasing
to be a Commissioner or employee, makes a record of, or divulges or communicates to
any person , any information acquired in the performance of his or her duties under this
Act, commits an offence and is liable on conviction to a fine of $1000.
(2) Subsection (1) does not prevent a Commissioner or an employee of the
Commission from making a record of, or divulging or communicating to any person
information acquired by the Commissioner or the employee in the performance of
his or her duties for purposes connected with the performance of the functions of the
Commission under the Constitution or this Act.
(3) Subsection (1) does not prevent the Commission from disclosing in a report
made under this Act any matter which in the Commission's opinion ought to be disclosed
in the course of setting out the grounds for the conclusions and recommendations
contained in the report.
(4) Subsection (1) does not prevent the Commission from disclosing information
or making a statement to the public or a section of the public with respect to the
performance of the functions of the Commission.
(5) The Commission must not, in disclosing information or making a statement
under subsection (4), disclose the name of a complainant or aggrieved person or any
other information that would enable the complainant or aggrieved person to be identified
unless it is fair and reasonable in all the circumstances to do so.
Protection from suit
46. Neither the Commission, a Commissioner nor an employee of the
Commission is liable to an action, suit or proceeding for or in relation to an act done or
omitted to be done in good faith in exercise or purported exercise of a power or authority
conferred by the Constitution or this Act.
Offences
47.--(1) A person who refuses or fails, without reasonable excuse-(a)

to attend before the Commission or a Commissioner;

(b)

to be sworn or make an affirmation;

(c)

to furnish information;

(d)

to produce a document, record or thing; or

62

(e)

to answer a question,

when required to do so pursuant to this Act, commits an offence and is liable on


conviction to a fine of $I,000 and to imprisonment for 6 months.
(2) A person who(a)

without reasonable excuse, wilfully obstructs, hinders or


resists the Commission, a Commissioner or an employee
of the Commission in the performance of his of their
functions; or

(b)

furnishes information or makes a statement to the


Commission, a Commissioner or an employee of the
Commission knowing that it is false or misleading in a
material manner,

Commits an offence and is liable on conviction to a fine of $1,000 and to imprisonment


for 12 months.
Expenses and allowance
48. The Commission may, in its discretion, pay to(a) any person by whom a complaint has been made; or
(b) any person who attends or who furnishes information for the
purposes of an investigation,
such amounts in respect of expenses properly incurred or by way of allowances or
compensation for loss of time, as are payable under the Criminal Procedure Code to a
witness attending at a trial or an inquiry at the High Court.
Regulations
49. The Minister may make regulations, not inconsistent with this Act, prescribing
all matters that are required or permitted by this Act to be prescribed or that are
convenient to be prescribed for carrying out or giving effect to this Act.
Passed by the House of Representatives this 3rd day of February 1999.
Passed by the Senate this 9th day of March 1999.

63

Price: 77c

PIO B. TIKOISUVA, Government Printer, Suva. Fiji1999

REHABTLITATION OF OFFENDERS
(IRRELEVANT CONVICTIONS) ACT, 1997

ARRANGEMENT OF SECTIONS.
SECTION

1.
2.
3.
4.
5.
6.

PART I--PRELIMINARY
Short title and commencement
Interpretation
Definition of irrelevant conviction
Definition of direct relationship
Definition of rehabilitation period
Commencement of rehabilitation period

7.
8.
9
10.
11.
12.
13.
14.
15.
16.

PART II--UNLAWFUL DISCRIMINATION


Employment
Trade unions, professional associations and organisations
Qualifying bodies
Irrelevant conviction not a ground for disciplinary action
Vocational training bodies
Disqualification from holding office
Access to public place or vehicle or facility
Provision of goods and service
Refusal of licence or permit
Land or premises

64

377/Z/991,250

17.
18.
19.

Educational establishments
Subterfuge
Employer and principal
PART III--PROHIBITIONS ON DISCLOSURE OF
IRRELEVANT CONVICTIONS

20.
21.
22.
23.
24.
25.

Disclosing of information where rehabilitation period expired


Defence to section 20
Offence to disclose conviction where rehabilitation period expired
Exception to section 22 for security purposes
Exception to section 22 for purposes of court proceedings
Defence to section 22

26.
27.
28.
29.
30.

PART IV--MISCELLANEOUS PROVISIONS


Computation of rehabilitation period
Certificate
Destruction of criminal records
Penalty
Regulation

Schedule

ACT NO. 11 OF 1997

I assent.
[L.S]
K.K.T. MARA
President
[11th June 1997]

AN ACT
TO ASSIST IN THE REHABILITATION OF PERSONS WITH CONVICTIONS
AND TO REMOVE CERTAIN DISABILITIES AND RELATED MATTERS
ENACTED by the Parliament of Fiji-PART I--PRELIMINARY
65

Short title and commencement


1.--(1) This Act may be cited as the Rehabilitation of Offenders (Irrelevant
Convictions Act, 1997.
(2) This Act shall came into force on a date appointed by the Minister and
published in the Fiji Republic Gazette.
Interpretation
2. In this Act, unless the context otherwise requires-"conviction" means a conviction for an offence entered either before or after the
commencement of this Act:
(a)

by or before a court, or a body or person exercising judicial


functions, in Fiji; or

(b)

by or before a court, or a body or person exercising judicial


functions, outside Fiji for an offence, had the offence been
committed in Fiji, it would have constituted an offence under the
laws of Fiji;
Rehabilitation of Offenders11 of 1997

"educational establishment" includes an establishment offering any form of


training or instruction;
"official" means a person in the service of the State or a member or employee of
a local authority or public body and includes an unestablished, casual or
temporary employee;
"premises" includes commercial premises.
Definition of irrelevant conviction
3. For the purposes of this Act, a conviction is irrelevant:-(a)

where there is no direct relationship between that conviction and


the particular matter in respect of which it is sought to take that
conviction into account; or

(b)

if the rehabilitation period has expired.

Definition of direct relationship


4.(1) For the purposes of section 3, there is a direct relationship between a
conviction and any matter in respect of which it is sought to take that conviction into
account if the fact of that conviction means that there is a real likelihood that the person
against whom that conviction was entered will, in relation to that matter:-(a)

be unreliable, untrustworthy, or otherwise unsatisfactory; or


66

(b)

commit a further offence.

(2) In determining, whether there is a real likelihood that any of the matters
specified in paragraph (a) or paragraph (b) of subsection (1) will occur, the following
matters shall be taken into consideration:-(a)

(b)

in relation to the offence for which the conviction in issue was entered,
(i)

the type and seriousness of that offence;

(ii)

the overall circumstances of that offence; and

(iii)

the period that has elapsed since that offence was committed; and

in relation to the person convicted, his or her present personal attitudes


and personal circumstances.

Definition of rehabilitation period


Rehabilitation of Offenders11 of 1997
5.(1)
conviction is:

Notwithstanding subsection (2), the rehabilitation period applicable to a

(a)

in case of a person who is seventeen years or over, ten years; or

(b)

in case of a person who is under the age of seventeen years


(i)

seven years, for a term of imprisonment or detention not


exceeding two years under section 30 or 3 1 of the
Juveniles Act, or

(ii)

(2)
five years.

ten years, for a term of imprisonment or detention


exceeding two years under section 3 1 of the Juveniles Act.

Subject to subsection (1), the rehabilitation period applicable to Part III, is


Commencement of rehabilitation period

6.(1)The rehabilitation period commences:-(a)

on the date of conviction; or

(b)

where a custodial sentence was imposed, on the date on which the


convicted person was unconditionally released from imprisonment
or
67

(c)

where the release of a convicted person from detention is subject


to a condition or other penalty imposed by the Court, when the
condition or that other penalty is fulfilled.

(2) The rehabilitation period for a conviction that was entered before the
commencement of this Act shall be deemed to have been expired on the day the
rehabilitation period would have expired as if the Act had been in force:
Provided that it does not affect any act done or omitted that may have been an offence
under or in contravention of, this Act before the coming into force of this Act.

PART II--UNLAWFUL DISCRIMTNATION


Employment
7.(1) Notwithstanding subsection (3), an employer or proposed employer shall
not:-committed;
Rehabilitation of Offenders11 of 1997
(a)

refuse to employ any other person,

(b)

fail to give any other person the same employment conditions, as


an employee employed to do the same or substantially the same
work, or

(c)

terminate the employment of any other person in circumstances


where any other employee would not be terminated,

by reason solely of the existence of an irrelevant conviction of that other person.


(2) A person who is concerned with procuring employment for another person or
procuring an employee for an employer or proposed employer shall not treat any other
person seeking employment differently from another person who is in the same or
substantially similar circumstances by reason solely of an irrelevant conviction of that
other person.
(3) Subsection(1) does not apply to an act or omission by a Government
department or public body where:-(a)

the act or omission, is based on the fact that person has not been given an
unqualified recommendation for a security clearance in a security
vetting carried out by the Police at the request of that Government
department or public body; and
68

(b)

an unqualified recommendation for a security clearance was not given


that person because that person has a conviction,

Trade unions, professional associations and organisations


8.--(1) Notwithstanding an express or implied provision of an enactment, law or
rule of an association, to the contrary, authorising or requiring a conviction to be taken
into account, no organisation shall:-(a)

refuse or omit to accept a person for membership,

(b)

refuse or omit to offer a person the same terms or conditions of


membership or the same access to any benefit, facility or service,
including the right to stand for and hold office in the organization,
as would otherwise be made available, or

(c)

suspend or deprive a person of membership, in circumstances in


which other persons would not be deprived of membership or be
suspended,

by reason of an irrelevant conviction of the person concerned.


Rehabilitation of Offenders11 of 1997
(2) In this section "organisation" means an organisation of workers, employers
any other organisation which exists for the purposes of members who carry on a
particular profession, trade, or calling.
Qualifying bodies
9. Notwithstanding the provision of any other enactment, law or rule of a body or
authority, to the contrary, authorising or requiring a conviction to be taken into
account, no authority, body or person empowered to confer an approval, authorisation, or
qualification that is needed for, or facilitates, an engagement in a profession, trade
or calling, shall:--

(a)

refuse or omit to confer that approval, authorisation, or qualification


a person,

(b)

confer that approval, authorisation, or qualification on a less favourable


term or condition than would otherwise be made available, or

(c)

withdraw that approval, authorisation, or qualification or vary the terms


or conditions on which it is held, in circumstances in which it would not
otherwise be withdrawn or varied,

by reason of an irrelevant conviction of the person concerned.


Irrelevant conviction not a ground for disciplinary action
69

10. Notwithstanding a provision in an enactment, law or rule of an authority or


body, to the contrary, authorising or requiring a conviction to be taken into account,
an authority or body empowered under an enactment or rules of that authority or body to
exercise disciplinary powers on persons carrying on a profession, trade or calling, shall
not exercise the disciplinary powers on a person by reason of an irrelevant conviction of
the person.
Vocational training bodies
11. Where the function of an organisation or association is to provide training,
facilities or opportunities for training including facilities or opportunities by way of
grants to assist a person for any employment, that organisation or association shall not:-(a)
refuse or omit to provide training, or facilities or opportunities for
training,
(b)
provide training, or facilities or opportunities for training, on less
favourable terms and conditions than would otherwise be made available,
or
(c)
terminate training, facilities or opportunities for training,
by reason of an irrelevant conviction of the person concerned.
Rehabilitation of Offenders11 of 1997
Irrelevant conviction not to disqualify from holding office
12. Notwithstanding any enactment, law or rule, to the contrary, specifying as a
requirement or condition for holding an office that a person be a fit and proper person
be of good character or reputation or be fit to be appointed or meet any other requirement
or condition relating to the character or conduct of a person, that enactment, law or rule,
shall not disqualify or be interpreted as disqualifying a person with an irrelevant
conviction from holding that office.
Access to public place or vehicle or facility
13. A person shall not:-(a)
refuse to allow any other person access to or use of, any place or
vehicle which members of the public are entitled or allowed to
enter or use,
(b)
refuse any other person the use of any facility in that place or
vehicle which is available to members of the public, or
(c)
require any other person to leave or cease to use that place or
vehicle or facility,
by reason of an irrelevant convic5on of that other person.
Provision of goods or services
14.(1) Notwithstanding any provision in any other enactment or business rule
or practice, to the contrary, authorising or requiring a conviction to be taken into account
(whether that authorisation or requirement relates to the existence or otherwise of a
conviction or to the character or conduct of the person concerned), a person who supplies
70

or provides goods, facilities, or services to the public, shall not:-(a)


(c)

refuse or fail, on demand, to provide any other person with the


goods, facilities, or services, or
provide any other person with the goods, facilities, or services on a
less favourable term or condition than those upon or subject to
which the person would otherwise make them available,

by reason of an irrelevant conviction of that other person.


(2) For the purposes of subsection ( 1), but without limiting the meaning of the
terms goods, facilities, and services in subsection (1), the term "facilities" includes
facilities by way of banking, insurance, grants, loans credit finance, licences or permits.
(3) For the purposes of subsection (1), a refusal or failure to provide goods, or
services includes a decision to cancel, revoke, or decline to renew or extend a licence
or permit.
(4) Notwithstanding a provision of an enactment or rule of a club, to the contrary,
authorising or requiring a conviction to be taken into account (whether that authorisation
Rehabilitation of Offenders11 of 1997
or requirement relates to the existence or otherwise of a conviction or conduct of the
person concerned), a club that grants rights or privileges to members of any other club
shall not refuse or fail on demand to provide rights or privileges to a member of that
other club, or provide a less favourable term or condition which would otherwise be
made available, by reason of an irrelevant conviction of the member.
Refusal of licence or permit
15. Notwithstanding any other enactment, to the contrary, authorising or requiring
a conviction or character or conduct of a person to be taken into account, a person
authorised or required under an enactment to grant, cancel. revoke, renew or extend a
licence or permit, shall not take into account the fact that any other person has an
irrelevant conviction under that enactment when:-(a)

refusing to grant a licence or permit to that other person;

(b)

granting a licence or permit to that other person on a less


favourable term or condition than would otherwise be made
available to another person;

(c)

cancelling or revoking, or declining to renew or extend, a licence


or permit held by that other person.

16.--(1)

Land or premises
A person shall not, on his or her own behalf or as an agent:-71

(a)

refuse or fail to dispose of any estate or interest in land or premises


to any other person;

(b)

dispose of an estate or interest in land or premises to any other


person on a less favourable term or condition than would be
offered to another person;

(c)

treat any other person who is seeking to acquire or has acquired an


estate or interest in land or premises, differently from another
person in the same circumstances;

(d)

deny any other person, directly or indirectly, the right to occupy a


land or premises;

(e)

terminate an estate or interest in land or the right of any other


person to occupy a land or premises,

by reason of an irrelevant conviction of the person concerned.


(2) A person, in his or her own behalf or as an agent, shall not impose or seek to
Rehabilitation of Offenders11 of 1997
impose on any other person a term or condition, by reference to an irrelevant conviction
of that other person, prohibiting or restricting the rights or privileges of that other person
as licensee or invitee of a tenant or occupier of a land or premises.
Educational establishments
17. No educational establishment, or authority responsible for the control of an
educational establishment shall:-(a)
refuse or fail to admit a pupil or student,
(b)
admit a person on a less favourable term or condition than would
otherwise be made available,
(c)
deny or restrict access to any benefit or service provided by the educational establishment to a person or,
(d)
exclude or subject a person to any other detriment,
by reason of an irrelevant conviction of the person.
Subterfuge
18. Where a requirement or condition which is not apparently in contravention
this Act has the effect of giving preference to a person without a conviction, in a situation
where such preference would be unlawful under this Act, the imposition of that condition
or requirement shall be unlawful under this Act unless the person imposing it establishes
good reason for its imposition and shows that its imposition is not a subterfuge to avoid
complying with this Act.
Employer and principal
72

19.(1) Notwithstanding subsection (3), an act done or omitted to be done by


an employee, shall be treated, for the purposes of this Act, as done or omitted to be done
by the employer as well as the employee whether or not the act was done or omitted to be
done or omitted to be done with the knowledge or approval of the employer.
(2) An act done or omitted to be done by an agent shall, for the purposes of his
Act, be treated as done or omitted to be done by the principal as well as the agent unless
the act or omission was done without the express or implied authority, precedent or
subsequent of the principal.
(3) In any proceedings under this Act, it is a defence for an employer to prove that
he or she took steps as were reasonably practicable to prevent the employee from doing
that act, or omission, or acts of that description.
PART III DROHIBITIONS ON DISCLOSURE OF
IRRELEVANT CONVICTIONS
Where rehabilitation period expired
20.--(1) A person shall not do or omit to do an act that publishes or discloses any
Rehabilitation of Offenders11 of 1997
information where:(a)
(b)

(c)

the information discloses or publishes the fact that a person has


conviction;
the rehabilitation period applicable to that conviction has expired,
and
the person who publishes that information knows, or has good
reason to know, that the rehabilitation period applicable to that
conviction has expired.

(2) A person who contravenes this section commits an offence and is liable, on
conviction:-(a)

in case of an individual, to a fine not exceeding $1,000 or to a term


of imprisonment not exceeding 18 months or both;

(b)

in case of a body corporate or unincorporated, to a fine not


exceeding $5,000.

Defence under section 20


21.(1) It is a defence under section 20 to prove that the disclosure or
publication was done with the consent of the person concerned.
Offence to disclose existence of conviction where rehabilitation period expired
73

22.(1) Notwithstanding anything in any other Act or sections 23 to 25 to the


contrary, no official shall disclose or communicate to any other person any information
where:(a)
(b)
(c)

(d)

that information discloses the fact that a person has expired;


the rehabilitation period applicable to that conviction has expired;
the official who communicates or discloses that information
knows, or has good reason to know, that the rehabilitation period
applicable to that conviction has expired; and
the information that discloses the fact of that conviction came to
the knowledge of that official in the course of his or her official
duties.

(2) A person who contravenes this section commits an offence and is liable on
conviction to a fine not exceeding $1,000 or to a term of imprisonment not exceeding 18
months or both.

Exception to section 22 relating to security purposes


Rehabilitation of Offenders11 of 1997
23.(1) Subject to section 22, a police officer may disclose or communicate any
information to an officer of a Government department or public body where the
information communicated or disclosed was done:(a)
with the consent of the person concerned; and
(b)
for the purposes of vetting that person for security purposes.

(2)
An information communicated or disclosed under subsection (1), may be
further communicated between Government departments or public bodies:(a)
(b)

for the purpose of vetting the person to whom the information relates for
security purposes; or
for the purposes of enabling a Government department or public body to
determine the suitability or eligibility of the person to whom the
information relates for employment or office, continuance in employment
or office, or removal from employment or office.

Exception to section 22 relating to court proceedings


24.(1) Subject to section 22, a person may communicate or disclose any
information if that information is communicated:(a)
for the purpose of enabling a person who has been convicted of an
offence to be sentenced or otherwise dealt with, under any
enactment for that offence; or
74

(b)

for the purposes of proving, in any judicial proceedings, the fact


that a person shall not refer to an irrelevant conviction without the
leave of the Court before which the matter is being heard.

(2) Notwithstanding the provisions of an enactment or law to the contrary, a


person shall not refer to an irrelevant conviction without the leave of the Court before
which the matter is being heard.
(3) A person seeking leave under subsection (2) shall make an application in
Chambers.
(4) Where leave is sought under subsection (2), the Court shall not grant leave
unless it is satisfied that:
(a)

the conviction is relevant to the proceedings;

(b)

justice cannot be done except by reference to the conviction; and

(c)

the need to refer to the conviction outweighs the protection this


Act confers on the person with that conviction.
Rehabilitation of Offenders11 of 1997

(5) Where leave is granted under this section, the Court may impose a condition
that no particulars are to be published that would identify any person as being a person
with an irrelevant conviction or other condition as the Court thinks fit.
(6) Where consent to communicate the information is not given by the person to
whom it relates, a person may apply to a Judge in Chambers for an order to access the
information. The applicant should show good cause and a compelling need for the
specific facts.
Defence to charge under section 22
25.
It is a defence under section 22 to prove that:-(a)
the information was disclosed or communicated only to the
person to whom it relates; or
(b)

the information was disclosed or communicated with the


consent of the person to whom it relates.

PART IV--MISCELLANEOUS
Computation of rehabilitation period
26.(1) Where a person is convicted of an offence and before the rehabilitation
period applicable to that conviction has expired, that person is convicted, in Fiji or
overseas, of another offence, the rehabilitation period applicable to the first conviction
shall not expire until the rehabilitation period applicable to the later conviction expires.
(2) Where a person is convicted of an offence and after the rehabilitation period
75

an offence applicable to that conviction has expired, that person is convicted in Fiji or
overseas, of an offence that was committed before that rehabilitation period expired, a
new rehabilitation period shall begin to run in respect of the first-mentioned conviction
from the date on which the rehabilitation period applicable to the later conviction begins
and, until the new rehabilitation period expires, that person may, subject to subsection (3)
of this section, be treated as if the first rehabilitation period applicable to the first
conviction had not expired.
(3) Where a new rehabilitation period is made to run in respect of a conviction,
nothing shall affect an act done or omitted to be done on the basis that the first
rehabilitation period applicable to that conviction had expired.
(4) Notwithstanding subsection(1) or subsection (2), where a person is convicted
of an offence, a later conviction for an offence which is not an offence punishable by
imprisonment shall not extend the rehabilitation period applicable to the first-mentioned
conviction or, if the rehabilitation period applicable to the first-mentioned conviction has
expired, cause a new rehabilitation period to run in respect of that conviction.
Certificate of rehabilitation
27.(1) A person who has a conviction on which the rehabilitation period has
expired may apply, in writing, to the Commissioner of Police for a certificate certifying
Rehabilitation of Offenders11 of 1997
that, for the purposes of this Act, the rehabilitation period for that conviction has expired.
(2) Where a person makes an application under subsection (1), the Commissioner
of Police shall , after making proper inquiry and being satisfied that the applicant is
entitled to it, issue a certificate in the form prescribed in the Schedule.
(3) In any proceedings under this Act, a certificate issued in respect of a conviction
in a foreign country may be admitted as evidence by the Court and, if admitted, shall be
deemed as if it were a certificate issued under this Act.
Destruction of criminal records
28. This Act does not authorise the destruction of criminal records.
Penalty
29. A person who contravenes a provision of this Act, for which no penalty is
provided, commits an offence and is liable on conviction:-(a)

in the case of an individual, to a fine not exceeding $1,000 or a


term of imprisonment not exceeding 18 months or both; or

(b)

in the case of a body corporate or unincorporated, to a fine not


exceeding $5,000.
Regulation
76

30. The Minister may make Regulations necessary to carry into effect the
provisions of this Act.

Rehabilitation of Offenders11 of 1997


SCHEDULE
Rehabilitation of Offenders (Irrelevant Convictions) Act
(Section 27)

CERTIFICATE OF REHABILITATION

I certify that the rehabilitation period regarding the conviction entered against
. has, for the purposes of the Rehabilitation of Offenders
(Irrelevant Convictions) Act, 1997 expired.

Dated this

day of

, 19 .

Commissioner of Police

Passed by the House of Representatives this fourteenth day of May, in the year of our
Lord one thousand, nine hundred and ninety-seven.
77

Passed by the Senate this twenty seventh day of May, in the year of our Lord one
thousand, nine hundred and ninety-seven.

Price:22c

PIO B. TIKOISUVA. Government Printer, Suva. Fiji-I997

78

11/Z/971,400