SOLOMON ISLANDS

FOREIGN INVESTMENT (AMENDMENT AND
VALIDATION) ACT 2009

(NO. 13 OF 2009)

PASSED by the National Parliament this Fourteenth day of July 2009.
(This printed impression has been carefully compared by me with the Bill passed by Parliament and found by me to be a true copy of the Bill)
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Taeasi Sanga (Mrs)
Clerk to Parliament

ASSENTED to in Her Majesty's name and on Her Majesty's behalf this fifth day of August 2009.

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Frank Utu Ofagioro Kabui (CSI, CMG, OBE)
Governor General

Date of Commencement: (See section 1)

AN ACT TO AMEND THE FOREIGN INVESTMENT ACT AND TO PROVIDE FOR RETROSPECTIVE COMMENCEMENT OF THE ACT AND TO VALIDATE ALL ACTS DONE BEFORE THE 19TH DAY OF OCTOBER 2007

ENACTED by the National Parliament of Solomon Islands.

FOREIGN INVESTMENT (AMENDMENT AND
VALIDATION) ACT 2009

Citation and commencement 

1. This Act may be cited as the Foreign Investment (Amendment and Validation) Act 2009, and commences on the date it is published in the Gazette.

Section 1 amended

2. Section 1 of the principal Act is amended by repealing subsection (2) and substituting the following subsection -

"(2) This Act is deemed to have commenced on 26 June 2006.".

Section 22 amended

3. Section 22 of the principal Act is amended in subsection (4) by deleting "$50,000" and "$250,000" and substituting "75,000 penalty units" and "400,000 penalty units", respectively.

New Part 5A added

4. The principal Act is amended by adding after section 29 the following sections and Part 5A-

"PART 5A - ADMINISTRATIVE PENALTIES AND COMPOUNDING
OF VIOLATIONS AND OFFENCES

"Purpose of this Part"

"29A. The purpose of administrative penalty provisions in this Part is to promote compliance with this Act and not to punish.".

"Violation"

"29B. (1) Without limiting any provision creating an offence in this Act and in any of its regulations, any contravention of or failure to comply with a provision of this Act, or its regulation, is a violation for the purposes of this Part.

(2) If the Registrar has reasonable grounds to believe that a person has committed a violation, the Registrar may issue, and shall cause to be served on the person, a written notice of violation.

(3) The notice of violation must name the person believed to have committed the violation, identify the violation and the potential administrative penalty payable for it, and provide a period during which the person may make written representations to the Registrar.

(4) The person served with a notice under subsection (2) may make representations in writing to the Registrar in response to the notice of violation.

(5) The Registrar shall, after considering any representations made under subsection (4) and any other information considered relevant, determine on the balance of probabilities whether the person committed the violation.

(6) If the Registrar determines that the person committed the violation, the Registrar may take any of the following actions -

(a) require the person to cease the violation and comply with the relevant provision at such time and subject to such conditions as the Registrar may require;

(b) require the person to publish in a newspaper having wide circulation in Solomon Islands an acknowledgement and apology for its actions in such form and at such times as the Registrar may require;

(c) require the person to provide periodic reports to the Registrar to assist the Registrar in monitoring compliance with this Act and its regulations;

(d) impose the administrative penalty referred to in the notice, a lesser penalty or no penalty.

(7) A person who is dissatisfied with a determination made under subsection (5) or an action taken under subsection (6) may apply to the Committee for a review of the determination or action pursuant to section 27, subject to necessary modifications of that section to facilitate the review under this subsection.".

"Administrative penalties"

"29C. (1) The person who commits a violation is liable -

(a) in the case of a natural person, to an administrative penalty not exceeding 30,000 penalty units for the first violations and 100,000 penalty units for any second or subsequent violations; or

(b) in the case of a company or other entity, to an administrative penalty not exceeding 125,000 penalty units for the first violation and 250,000 penalty units for any second or subsequent violations.

(2) Administrative penalties payable under subsection (1) shall -

(a) be evidenced by a certificate signed by the Registrar;

(b) constitute a debt due to the Crown; and

(c) be paid into the Consolidated Fund; and

(d) if not paid within twenty-eight days attract interest at the prescribed rate and if no such rate is prescribed, at the rate of five percent a year.".

"Matters to be taken into account."

"29D. The amount of an administrative penalty to be imposed on any person shall be determined taking into account -

(a) the nature of the violation;

(b) the frequency and duration of the conduct constituting the violation;

(c) the history of compliance with this Act and its regulations by the person who committed the violation;

(d) any other relevant factor.".

"Vicarious liability"

"29E. (1) A person is liable for a violation committed by -

(a) an employee of the person acting in the course of the employee's employment; or

(b) an agent of the person acting within the scope of the agent's authority,

whether or not the employee or agent actually committed the violation is identified or proceeded against in accordance with this Act.

(2) A person shall not be liable under subsection (1) by virtue only of being a Registrar of a company which has (or whose employee or agent has) committed a violation.".

"Time limit"

"29F. To proceedings in respect of a violation may be commenced after five years from the day on which the subject-matter of the proceedings became known to the Registrar or any other person bringing the proceeding.".

"Proceedings for violation and offences"

"29G. If a contravention under this Act or its regulation can be proceeded with either as a violation or as an offence under this Act or its regulations, proceeding in one manner precludes proceeding in the other.".

"Compounding of violation or offences"

"29H. (1) Subject to subsection (2), if the Minister has reasonable grounds to believe that any person may have committed a violation of or an offence against this Act or its regulations, the Minister may compound such violation or offence by accepting on behalf of the Crown from such person a sum of money not exceeding the maximum amount of an administrative penalty provided for under this Part or the maximum fine specified for that offence.

(2) Where the person who may have committed the violation or the offence is no longer within Solomon Islands, the Minister may send written notice of his intention to compound the violation or offence to the last known address of the person outside Solomon Islands.

(3) No violation or offence shall be compounded under this section -

(a) unless the person who may have committed the violation or offence has expressed his willingness in the prescribed form that the violation or offence be so dealt with; or

(b) in the case of a notification under subsection (2), if the person concerned notifies the Minister in writing that he does not wish the violation or offence to be compounded and submits to the jurisdiction of the courts of Solomon Islands.

(4) For the purposes of subsection (3), the Registrar in the case of a violation or the court in the case of an offence, may require such person to file a satisfactory bond or other form of security.

(5) If the prosecution of a case has been commenced, the compounding of an offence under this section shall be notified in writing to the court signed by both parties, except that in the case of a compounding following a notification under subsection (2), the signature of the Minister alone will suffice.

(6) In any proceedings brought against any person for a violation or an offence against this Act or its regulation, it shall be a defence if such person proves that the violation or the offence with which he is charged has been dealt with under this Part.

(7) The power of the Minister to compound a violation or an offence shall be exercised -

(a) in the case of a violation, before a determination is made or an action is taken under 28B(5) or (6); or

(b) in the case of an offence, before conviction.".

Section 32 amended

5. Section 32 of the principal Act is amended by deleting "$100,000" and "$500,000" and substituting "150,000 penalty units" and "750,000 penalty units", respectively.

Section 33 amended

6. Section 33 of the principal Act is amended in subsection (1) by deleting "$200,000" and substituting "300,000 penalty units".

Section 34 replaced

7. The principal Act is amended by repealing section 34 and substituting the following section -

"Exemption of liability"

"34. The Government, the Minister, the Investment Facilitating Committee, the Registrar, officers, employees and any person acting under the authority of this Act or of the Committee, including persons with delegated authority for the purposes of implementing this Act, shall not -

(a) be subject to any action, liability, claim or demand; or

(b) be liable for any matter or thing done or omitted to be done in good faith (whether negligently or not),

in the performance or for any purported performance of any function or duty, or exercise or purported exercise of any power under this Act.".

Section 36 amended

8. Section 36 of the principal Act is amended in subsection (2)(d) by deleting "$20,000" and "$100,000" and substituting "30,000 penalty units" and "150,000 penalty units", respectively.

Validation of acts

9. (1) All actions taken under the principal Act before the 19th day of October 2007 shall be deemed to have been taken and continued in operation as valid and effective as if they were taken and continued under the principal Act.

(2) The validity and continued operation of any action validated under this section shall not be called into question, nor shall be deemed to have been questionable, by or before any court or public officer, merely on the ground that the principal Act was purportedly brought into operation before the 19th day of October 2007.

(3) No court shall entertain any legal proceedings -

(a) questioning the validity and continued operation of any action validated under this section; or

(b) claiming any compensation or damages for any loss founded on any action validated under this section and its continued operation.

(4) The appointment of the 19th day of October 2007 as the commencement date of the principal Act is vacated.
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