(Mostly the same, more confusing, less to challenge)
Introduction
1. On 24 September 2010 the government published the Commerce Commission Decree 2010[1] (Decree). It is stated to have come into force on 1 July 2010.
What the Decree does (?)
2. The Decree intends to replace and consolidate the Counter-Inflation Act (Cap. 73), Fair Trading Decree 1992 and the Commerce Act 1998 (Repealed Laws). The substantive law has not changed very much. The main changes to the law appear to be that:
(a) price control powers now belong wholly to the Commerce Commission(Commission). The Prices and Incomes Board (PIB) no longer exists
(b) price control orders of the Commission are not subject to any form of legal challenge whatever
(c) appeal rights for certain Commission decisions relating to telecommunications appear also to have been abolished.
What the Decree contains
Commerce Commission’s powers expanded
3. The Commission is now Fiji’s sole price controlling authority, having taken over the functions of the PIB. It has already issued one price control order (see paragraph 11).
4. The Commission now has two ways of making price control orders:
(a) the way the Commission used to under the repealed Commerce Act and
(b) the way the PIB used to under the repealed Counter-inflation Act.
There is no evident reason for this – other than “cut and paste” drafting.
No legal challenges to price control orders
5. A price control order made under the Decree cannot be challenged in any way. PIB decisions were previously (like most public authority decisions) subject to judicial review.
No legal challenges to telecommunications decisions
6. The repealed Commerce Act allowed the Commission’s decisions on telecommunication services to be appealed to the Telecommunications Appeal Tribunal. That right of appeal is gone. It appears from s.38A of the Decree that no telecommunications-related decisions can now be legally challenged.
No regulation of remuneration and dividends
7. The repealed Counter-Inflation Act gave PIB power to regulate remuneration and dividends to control inflation. These powers (last exercised in 1987 for dividends and 1989 for remuneration) appear now to have been abolished.
Hoarding, refusing to sell in anticipation of price increase
8. It is now made an offence to hoard, refuse to sell, or refuse to make goods available for sale if done to charge a higher price in anticipation of a price increase under the Decree[2].
Information/safety standards and restrictions on dangerous goods and services
9. The repealed Fair Trading Decree allowed government to set information standards or restrict the supply of specified goods or services. These powers are not in the new Decree. However similar powers exist in the Trade Standards and Quality Control Decree 1991.
Transition
10. All regulations and orders made under the Repealed Laws continue in force until replaced.
Price Control Order 1 of 2010
11. The Commission issued its first Price Control Order[3] on 29 September 2010, setting the maximum percentage mark-up allowed by importers, wholesalers and retailers on certain basic food items (milk, butter, chicken, edible oils, etc) and petroleum products. However this order is simply a replica of similar 2008 PIB orders. The Commission has also advertised in the press requiring importers, wholesalers, and retailers engaged in the trade of the products covered under the Order to deliver to it specified information.
Our views
12. It is concerning that a Decree which has apparently been in force since 1 July is only made public 11 weeks later, without advance notice. One advantage of first consulting stakeholders is that at least someone proof-reads your work. The Decree demonstrates the dangers of “cut-and-paste drafting”. The result is many spelling, grammatical and cross-referencing errors and important legal issues left unclear.
13. More concerning is the increasing number of Commission decisions that the Decree says may not be challenged. Public law decisionmakers are far from infallible. People affected by their bad decisions should have legal redress. If not, the only way bad decisions can be changed is by lobbying for new decisions. The consequences for good governance are self-evident.
Contact
Richard Naidu
Partner
Direct Dial +679 322 1816
[email protected]
Rajnil Krishna
Solicitor
Direct Dial +679 322 1814
[email protected]
for further information on this Alert.
[1] Decree No. 49 of 2010
[2] Section 87G(1)(ii) (which mistakenly refers to section 59. It should be section 39).
[3] Commerce (Price Control) (Percentage Control of Prices for Food Items) (No. 1) Order, 2010.
Disclaimer
The information and opinions in this Legal Alert are for general information purposes only. They are not intended as specific legal or other professional advice and should not be relied upon or treated as a substitute for specific advice. Munro Leys can accept no responsibility for any loss arising from reliance on the general information contained in this Legal Alert.