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Broadcasting Act 1989

NIUE

BROADCASTING ACT 1989

Act 132 of 1989 - 8 June 1989

ANALYSIS

PART I - PRELIMINARY

1. Short title
2. Interpretation
3. Application
4. General objectives of the Act

PART II - THE BROADCASTING CORPORATION

5. The Corporation established.
6. Services of Corporation.
7. Functions and powers of the Corporation.
8. Government policy.
9. Programme functions and powers of Corporation.
10. Board of Directors.
11. Term of office of appointed directors.
12. Extraordinary vacancies.
13. Chairman.
14. Remuneration of appointed directors.
15. Meeting of directors
16. Leave of absence
17. Disclosure of interests.
18. Directors not personally liable.
19. Contracts by the Corporation.
20. Committees.
21. Delegation of powers

PART III - PERSONNEL

22. General Manager
23. Corporation employees
24. Application of the Niue Public Service terms and conditions.

PART IV - FINANCIAL PROVISIONS

25. Capital
26. Bank accounts
27. Application of funds
28. Disposition of profits
29. Advances to Corporation
30. Investment of excess funds
31. Annual estimates
32. Accounts and records
33. Audit
34. Annual report

PART V - PROGRAMMES

35. Responsibility of corporation for programme standards.
36. Advertisements.

PART VI - MISCELLANEOUS

37. Power to require certain transmissions.
38. Power of Corporation to charge fees.
39. Contracts for provision of services and programmes.
40. Regulations
41. Corporation not to be taxed.

PART VII - TRANSITIONAL PROVISIONS

42. Transfer of assets to Corporation.
43. Personnel
44. Pre-incorporation contracts

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AN ACT to establish the Broadcasting Corporation of Niue for the provision of television and radio services and for related purposes.

1. Short title - This Act may be cited as the Broadcasting Act 1989.

2. Interpretation - In this Act, unless the context otherwise requires -

"advertisement" means any matter which draws the attention of the public, or a segment thereof, to a product, service, person, organisation or line of conduct in a manner which appears to be calculated to promote or oppose, directly or indirectly, that product, service, person, organisation or line of conduct;

"Assembly" means the legislative Assembly of Niue.

"Board" means the Board of Directors appointed under the provisions of this Act.

"broadcasting" means the transmission of sound and/or visual images intended for direct reception by the general public.

"Cabinet" means the Cabinet of Ministers of Niue pursuant to Article 2 of the Niue Constitution.

"community announcement" means in advertisement relating to a community event or activity or to public health or education.

"Corporation" means the Broadcasting Corporation of Niue established by this Act.

"Minister" means the Minister for the time being in charge of broadcasting.

"Programme" means any matter including an advertisement transmitted as part of the Corporation's television and/or radio services.

"Radio service" means the service called Radio Sunshine established by this Act.

"regulations" means regulations made under section 40 of this Act.

"Services" in addition to Radio Sunshine and Television Niue, includes any other service established by the Corporation under this Act.

"Television service" means the service called Television Niue established by this Act.

3. Application - (1) This Act shall bind the Crown except as specified in this Act or the regulations but nothing in this Act shall render the Crown liable to any prosecution.

(2) Except as otherwise provided herein this Act shall be read subject to the provisions of the Communications Act 1989.

(3) Subject to the provisions of this Act, the Film and Public Entertainment Act 1979 shall not apply to the Corporation.

4. General objectives of the Act - The general objectives of this Act are -

(a) to provide for national broadcasting to be controlled by a corporation which, subject to this Act, acts as a trustee of the national interest and operates its services with the maximum independence;

(b) to provide a means of ensuring that television and radio programmes arc compatible with the identity and culture of Niue; and

(c) to provide for the ultimate accountability of the broadcasting system to the Niue Legislative Assembly through the Minister and Cabinet.

PART II - THE BROADCASTING CORPORATION

5. The Corporation established - (1) There is hereby established a corporation to be called the Broadcasting Corporation of Niue.

(2) The Corporation shall be a body corporate with perpetual succession and a common seal, and shall be capable of acquiring, holding, and disposing of real and personal property, of suing and being sued, and of doing and suffering all such acts and things as bodies corporate may do and suffer.

(3) All courts judges and persons acting judicially shall take judicial notice of the imprint of the seal of the corporation appearing on a document and shall presume that the document was duly sealed.

6. Services of Corporation - On the commencement of this Act, the Corporation shall maintain the following services -

(a) The existing Service called Radio Sunshine;

(b) The existing Service called Television Niue;

(c) Such other services as the Corporation may from time to time establish.

Provided that Cabinet may, on the recommendation of the Corporation, approve the disestablishment of any of the services mentioned in paragraphs (a) and (b) of this section.

7. Functions and powers of the Corporation - (1) The functions of the Corporation are to provide national broadcasting services for Niue, and if so directed by Cabinet to places outside Niue, which -

(a) serve as far as practicable, all the people of Niue;

(b) contribute to the development of national unity;

(c) preserve and stimulate pride in the indigenous culture and traditions of the people of Niue; and

(d) consist of a variety of programmes which inform, educate and entertain.

(2) Subject to the provisions of this Act the Corporation has power to do all things necessary or convenient to be done for or in connection with the performance of its functions and, in particular has power -

(a) to enter into contracts;

(b) to acquire, hold and dispose of real or personal property;

(c) To occupy, use and control any land or building owned or held under lease by the State and made available for the purposes of the Corporation;

(d) to erect buildings and structures and carry out works;

(e) to appoint agents and attorneys, and to act as agent for other persons;

(f) to engage persons to perform services for the Corporation;

(g) to accept gifts, devises and bequests made to the Corporation whether on trust or otherwise, and to act as trustee of moneys or other property vested in the Corporation on trust;

(h) to borrow money from any bank or lending institution (with or without security) on such terms and conditions it may agree to:

Provided always that the Corporation shall not borrow any sums up to $20,000 without first obtaining the Minister's concurrence, and further shall not borrow any sums in excess of $20,000 without first obtaining Cabinet's approval; and

(i) to do anything incidental to any of its powers.

8. Government policy - (1) In the exercise of its functions and powers under this Act the Corporation shall have regard to the general policy of the Government in relation to broadcasting or to the functions and powers of the Corporation as that policy is communicated to the Corporation from time to time by Cabinet, and shall comply with any directions given by Cabinet to the Corporation by notice in writing pursuant to any such policy.

(2) Nothing in sub-section (1) authorises Cabinet to give a direction in respect of -

(a) a particular programme;

(b) the gathering or presentation of news or the preparation or presentation of current affairs programmes;

(c) contracts for the provision of programmes; or

(d) the staffing of the Corporation.

9. Programme functions and powers of Corporation - The programme functions and powers of the Corporation shall be -

(a) To ensure that each Service operates as a public service to provide and produce programmes which inform, educate, and entertain.

(b) To establish a system for the gathering of news for television, and a system for the gathering of news for radio; and to make such news available for tile services;

(c) To negotiate for and purchase or otherwise acquire programmes, and rights or privileges in respect of sports fixtures and other events, occasions, meetings, functions, or incidents of public interest for broadcast by the Services, and to establish procedures for the allocation of such programmes, rights, or privileges to the Services;

(d) From time to time conduct or commission programme, audience research, market, or technical surveys, which may be released to such persons and in such manner and on such terms and conditions as the Corporation thinks fit.

10. Board of Directors - (1) The Corporation shall be governed by a Board of Directors consisting of the following Directors:

(a) Four persons appointed in accordance with subsection 2 of this section;

(b) The Financial Secretary ex officio;

(c) The Director of Community Affairs ex officio;

(d) The General Manager ex officio.

(2) The directors specified in subsection (1) (a) of this section shall be appointed by Cabinet as follows -

(a) One director to represent commercial interests;

(b) One director to represent youth interests;

(c) One director to represent religious interests;

(d) One director to represent women,

Provided that no other person may be appointed under this subsection to be a director or may continue to hold office as a director so appointed, while he is a person holding a full time office of emolument in the Broadcasting Corporation.

(3) Without limiting the generality of the powers and functions of the Corporation as provided under this Act, the Board shall -

(a) ensure that the functions of the Corporation are performed efficiently with the maximum benefit to the people of Niue;

(b) maintain the independence and integrity of the Corporation subject to the provisions of this Act;

(c) ensure that the assets of the Corporation are as far as practicable preserved, maintained and utilised in a manner consistent with the functions of the Corporation; and

(d) ensure that the Corporation does not contravene or fail to comply with any of the provisions of this Act or any directions given under section 8 of this Act.

11. Term of office of appointed directors - (1) Every director appointed under section 10(2) of this Act shall be appointed for a term of three years.

(2) Subject to section 12 of this Act every appointed director shall continue to hold office until his successor comes into office.

(3) Every appointed director may from time to time be reappointed.

12. Extraordinary vacancies - (1) Any appointed director may at any time resign his office by notice in writing delivered to the Clerk of Cabinet.

(2) Cabinet may remove any appointed director from office-

(a) For disability, neglect of duty, misconduct, or bankruptcy; or

(b) If the director has permanently left Niue; or

(c) If the director is absent from three consecutive meetings of the Board without leave of absence from the Board as required under section 16 of this Act.

(3) If an appointed director dies, or resigns, or is removed from office under this section, the vacancy thereby occurring shall be deemed to be an extraordinary vacancy, and may be filled by an appointment made in the same manner as that of the director vacating office.

(4) Any person appointed to fill an extraordinary vacancy shall hold office for the unexpired balance of the term of office of his predecessor, but may from time to time be reappointed.

(5) The powers of the Board shall not be affected by any vacancy in its membership.

13. Chairman - (1) Cabinet shall from time to time appoint one of the Directors specified under section 10(1)(a) of this Act to be the Chairman of the Board.

(2) The Chairman shall hold office as such for a period of three years from the date of his appointment unless he sooner ceases to be a director, and may be reappointed as such.

14. Remuneration of directors - Every director shall be paid such fees as may from time to time be fixed by Cabinet by regulations made under this Act.

15. Meeting's of directors - (1) The first meeting of the directors shall be held on a day to be appointed by Cabinet.

(2) Meetings of directors shall be held at least once every two months at such times and places as the Chairman or the directors appoint.

(3) The Chairman shall call a meeting whenever required to do so in writing by any three directors.

(4) At any meeting five directors shall form a quorum.

(5) The Chairman shall preside at every meeting at which he is present.

(6) If the Chairman is for any reason absent from a meeting, the directors present shall elect one of their number to preside at that meeting.

(7) In the absence from any meeting of a director ex officio, he may authorise any other officer of his department or (in the case of the General Manager) of the Corporation to attend the meeting in his place. Any officer so authorised shall be deemed for all purposes to be a director of the Corporation when he so attends that meeting.

(8) At every meeting, the Chairman or other person presiding shall have a deliberative vote and in the case of an equality of votes, he shall also have a casting vote.

(9) Every question arising at a meeting shall be decided by a majority of the votes recorded on the question.

(10) Subject to the other provisions of this Act, the Board may regulate its procedure in such manner as it thinks fit.

16. Leave of absence - The Board may grant leave to a director to be absent from a meeting of the Board upon such conditions as to remuneration or otherwise as the Board thinks fit.

17. Disclosure of interests- (1) A director who has a direct or indirect pecuniary interest to a matter being considered or about to be considered by the Board shall, as soon as possible after the relevant facts have come to his knowledge, disclose the nature of his interest at a meeting of the Board.

(2) A disclosure under subsection (1) of this section shall be recorded in the minutes of the meeting of the Board and the director shall not -

(a) be present during any deliberation of the Board with respect to that matter; or

(b) take part in any decision of the Board with respect to that matter; or

(c) in any way influence any decision of the Board.

(3) Notwithstanding subsection (2) (a) of this section, the director shall be counted as present for the purpose of forming a quorum of the Board for any such deliberation or decision.

18. Directors not personally liable - No director of the Corporation shall be personally liable for any act done or default made by the Corporation or by any of its members in good faith in the course of its operations.

19. Contracts by the Corporation - (1) Contracts on behalf of the Corporation may be made as follows:-

(a) Any contract which, if made between private persons, must be by deed shall, if made by the Corporation, be in writing under the common seal of the Corporation;

(b) Any contract which, if made between private persons, must be in writing signed by the parties to be charged therewith shall, if made by the Corporation, be in writing either under the common seal of the Corporation or signed by any person on behalf and by direction (either general or specific) of the Corporation;

(c) Any contract which, if made between private persons, may be made orally, may if made by the Corporation, be made orally by any person on behalf and by direction (either general or specific) of the Corporation;

Provided that so far as reasonably practicable, contracts of the Corporation shall be made in writing.

(2) The common seal of the Corporation shall not be affixed to any document except in pursuance of a resolution of the Board and the execution of any document so sealed shall be attested by two directors.

20. Committees - (1) The Corporation may from time to time appoint committees consisting of any directors or officers of the Corporation.

(2) Subject to the other provisions of this Act and to any directions given to it by the Corporation, every committee may regulate its procedure in such manner as it thinks fit.

21. Delegation of powers - (1) The Corporation may from time to time delegate to any of its committees, or to the General Manager, or to any other officer of the Corporation any of its powers under this Act, including this present power of delegation.

(2) Subject to any general or specific directions given to it or to him by the Corporation, any committee or person to whom any powers are so delegated may exercise those powers in the same manner and with the same effect as if they had been conferred on it or him directly by this Act and not by delegation.

(3) Any committee or person purporting to act under any delegation under this section shall be presumed, until the contrary is proved, to be acting in accordance with the terms of the delegation.

(4) Every such delegation shall be revocable at will, and no such delegation shall prevent the exercise of any power by the Corporation itself.

(5) Until any such delegation is revoked, it shall continue in force according to its tenor, notwithstanding any change in the membership of the Corporation or of any committee.

PART III - PERSONNEL

22. General Manager - (1) The Board, shall from time to time appoint a General Manager of the Corporation, for such period (not exceeding five years) as may be specified in the appointment, and on such terms and conditions as may be determined by the Board.

(2) The General Manager shall be the administrative head of the Corporation, and shall be responsible to the Corporation for the effective and efficient execution of the Corporation's functions. In carrying out his duties, he shall follow any general or special directions given to him by the Corporation.

(3) The General Manager may from time to time be reappointed.

(4) All remuneration and other allowances and expenses payable to the General Manager shall be paid out of the funds of the Corporation.

(5) The General Manager shall not engage in any other business or occupation without the prior written consent of the Corporation.

23 Corporation employees - (1) The Corporation may from time to time employ such officers and employees as it considers necessary for the performance of its functions, on such terms and conditions as provided under section 24 of this Act, and may at any time remove any such officer or employee from his office or employment.

(2) For the purposes of Article 62 of the Niue Constitution the General Manager and other employees of the Corporation shall not be regarded as members of the Niue Public Service.

24. Application of the Niue Public Service terms and conditions - (1) The Corporation shall, with any necessary modifications, apply the terms and conditions applicable from time to time to the Niue Public Service, to the remuneration and conditions of employment of the employees of the Corporation in the same manner as they apply to the remuneration and conditions of employment of employees in the Niue Public Service.

(2) Notwithstanding Subsection (1) of this section the Corporation may, with the express approval of Cabinet, apply to its employees' terms and conditions more favourable than those applicable to the Niue Public Service.

PART IV - FINANCIAL PROVISIONS

25. Capital - (1) The capital of the Corporation shall be $266,000 to be made up as follows -

(a) As to the amount of $190,000 representing a book value of all the assets of Radio Sunshine and Television Niue as of 31 March 1989.

(b) A cash grant of $76,000 to be made by the Government of Niue to the Corporation on the commencement of this Act.

(2) The Corporation may from time to time, by resolution and with the concurrence of the Minister, recommend to Cabinet that the capital of the Corporation be increased, and in any such case Cabinet, on the advice of the Minister of Finance, may, by Order, increase the capital of the Corporation to such amount as may be prescribed in that Order. The amount of any such increase shall be paid to the Corporation by the Minister of Finance, from money appropriated by the Assembly for that purpose.

(3) The whole of the capital of the Corporation for the time being shall be deemed to be vested in the Crown.

26. Bank accounts - (1) The Corporation shall open and maintain an account with a bank approved by the Board and shall pay to that account -

(a) All capital grants made under section 25(1)(b) of this Act;

(b) All advances made under section 29 of this Act;

(c) All fees charged by the Corporation pursuant to Section 38 of this Act;

(d) All other money derived from the operations of the Corporation or received by the Corporation from any source whatsoever.

(2) The bank account under this section shall be operated upon only by cheque or other instrument (not being it promissory note or bill) signed by such person or persons as may from time to time be authorised by the Corporation for that purpose.

27. Application of funds - The funds of the Corporation shall be applied only -

(a) in payment or discharge of the expenses, charges, obligations, or liabilities incurred or undertaken by the Corporation in or in connection with the performance of its functions or the exercise of its powers;

(b) in making; and, other payments that are required by law to be made out of the funds of the Corporation.

28. Disposition of profits - (1) The Corporation shall establish a Reserve Fund into which shall be paid the annual surplus of the Corporation.

(2) The annual surplus shall consist of so much of the annual income of the Corporation
as is not required for the payment of expenses, including staff, salaries, and allowances; provision for previous losses, bad and doubtful debts; depreciation of assets; and all such other matters as the Corporation considers proper.

(3) During the first two years after the date of commencement of this Act the whole of the annual surplus shall be paid into the Reserve Fund.

(4) During subsequent years the Corporation shall declare a dividend on the capital of the Corporation of such amount as may be fixed in that behalf by the Minister of Finance, after consultation by him with the Corporation:

Provided that the Minister of Finance, having regard to the financial position of the Corporation, may in any financial year determine that no dividend shall be payable by the Corporation in respect of that year.

(5) The amount of any dividend declared by the Corporation under this section shall be paid into the Niue Government Account.

29. Advances to Corporation - (1) Cabinet may from time to time -

(a) Advance money to the Corporation; or

(b) Give in respect of any advance made to the Corporation by any other person any guarantee, indemnity, or security on and subject to such terms and conditions as Cabinet thinks fit.

All money required to be paid by Cabinet under subsection (1) (a) of this section shall be paid out of the Niue Government Account as appropriated by the Assembly for that purpose.

(2) All money required by Cabinet under subsection (1) (a) of this section shall be paid out of the Niue Government Account as appropriate by the Assembly for that purpose.

(3) Cabinet may from time to time, enter into agreements with the Corporation for the purposes of giving full effect to this section.

30. Investment of excess funds - Any excess funds of the Corporation may from time to time be invested on deposit in any bank approved by the Board.

31. Annual estimates - (1) The Corporation shall, for each financial year, prepare an estimate, in a form approved by the Minister of Finance, of the amount of expenditure for all purposes, and tile receipts of the Corporation.

(2) The estimates so prepared shall be submitted to the Minister not later than such date as the Minister directs, for the approval of such estimates by Cabinet, and tile funds of the Corporation shall not be expended otherwise than in accordance with estimates of expenditure so approved.

32. Accounts and records - The Corporation shall cause to be kept proper accounts and records of the transactions and affairs of the Corporation and shall do all things necessary to ensure that all payments out of its funds are correctly made and properly authorised and that adequate control is maintained over the assets of or in the custody of the Corporation and over the incurring of liabilities by tile Corporation.

33. Audit - The accounts and records of financial transactions of tile Corporation shall be audited annually by the Government Auditors and a report of the audit shall be furnished to the Corporation and Cabinet.

34. Annual report - The Corporation shall within 3 months after the end of the Corporation's financial year prepare and furnish to the Minister a report on its operations during the year ended on that date together with financial statements in respect of that year in such form as the Minister of Finance approves.

PART V - PROGRAMMES

35. Responsibility of Corporation for programme standards - (1) Subject to any advice that the Corporation may from time to time receive from the Programme Advisory Committee pursuant to section 13 of the Communications Act 1989, the Corporation shall be responsible for maintaining, in its programmes and their presentation, standards which will be generally acceptable in the community, and in particular it shall have regard to -

(a) The provision of a range of programmes which will cater in a balanced way for the varied interests of different sections of the community;

(b) The needs to ensure as far as practicable, that a Niuean identity is developed and maintained in the services;

(c) The observance of standards of good taste and decency;

(d) The accurate and impartial gathering and presentation of news, according to recognised standards of objective journalism;

(e) The principle that when controversial issues of public importance are discussed, reasonable efforts are made to present significant points of view either in the same programme or in other programmes within the period of current interest;

(f) The maintenance of law and order; and

(g) The privacy of the individual;

(2) In ensuring compliance with subsection (1)(c) of this section, the Corporation shall be guided by such guidelines as are applied from time to time by the Censor of Films pursuant to the Films and Public Entertainment Act 1979, notwithstanding section 3(3) of this Act.

36. Advertisements - Notwithstanding section 12(1)(a) of the Communications Act 1989 the Corporation shall be empowered to transmit advertisements through any of its services:

Provided that in making such transmissions the Corporation shall take into account Cabinet's policies on matters of advertising and shall further take into account any guidelines established by the Programme Advisory Committee pursuant to section 13(5) of the said Communications Act.

PART VI - MISCELLANEOUS

37. Power to require certain transmissions - (1) When required to do so by the Minister, the Corporation shall make the service available to transmit any programme the Minister with Cabinet's approval, considers to be in the national interest.

(2) The Corporation shall not be obliged to make the service available under subsection (1) of this section for more than 1 hour in any one day.

(3) During any period of national emergency proclaimed under section 2 of the Public Emergency Act 1979 -

(a) the limitation referred to in subsection (2) of this section shall not apply; and

(b) the Corporation shall make the service available to authorised officers of the Government to transmit such matter as the Minister with Cabinet's approval, considers necessary.

(4) The power of the Minister under subsection (1) of this section does not include the power to require the Corporation to transmit any programme or other matter that could reasonably be interpreted as promoting or opposing -

(a) a candidate in an election; or

(b) a particular point of view in relation to an issue or matter that is being submitted to the electorate in an election.

38. Power of Corporation to charge fees - (1) The Corporation may from time to time, recommend to Cabinet the level of fees that the Corporation would charge for any of its services.

(2) Subject to Cabinet's approval, the fees to be charged shall be made by Cabinet by regulations pursuant to section 40 of this Act.

39. Contracts for provision of services and programmes - The Corporation may from time to time enter into such contracts and make such arrangements as it thinks fit with any person who, subject to the terms and conditions of any such contract or arrangement, will produce programmes or parts of programmes to be broadcast by the Corporation.

40. Regulations - Cabinet may, from time to time on the recommendation of the Corporation, make regulations necessary for carrying out or giving full effect to the provisions of this Act.

41. Corporation not to be taxed - The Corporation shall, for a period of ten years from the date of commencement of this Act, not be liable to income tax, customs duty, or any other taxation or duty.

PART VII - TRANSITIONAL PROVISIONS

42. Transfer of assets to Corporation - (1) On the commencement of this Act all assets of both Radio Sunshine and Television Niue existing as of 31 March 1989 and all future assets whether purchased by the Corporation or by the Government of Niue, or other donor, organisation shall vest with the Corporation as trustees of such assets on behalf of the Government.

(2) For the purposes of subsection (1) of this section the term "assets" shall include -

(a) all equipment, machinery, vehicles, office furniture and stationery;

(b) all premises occupied by both Radio Sunshine and Television Niue including fixtures to such premises;

(c) all subscriber contracts and rights and obligations under such contracts; and

(d) all video tapes, films, records, tapes and other recordings or materials including the copyrights subsisting on any such video tapes, films, records, tapes and other recordings or materials;

(e) all monies held or collected by the Government for television services up to 31 March 1959.

43. Personnel - (1) Notwithstanding sections 22 and 23 of this Act the Corporation may, on the commencement of this Act, employ the General Manager and other employees on a secondment basis from the Niue Public Service, on such arrangements as agreed upon with the Niue Public Service Commission:

Provided that the Corporation shall have the sole discretion as to which employees of the Niue Public Service are to be engaged on such basis.

(2) During the term of such employment the General Manager and other staff shall come under the full control of the Corporation notwithstanding the continuance of their status as members of the Niue Public Service.

44. Pre-incorporation contracts - All contracts, agreements or other arrangements entered into by the Government of Niue with any other organisation, body, or persons regarding the provision of programmes or other services for Television Niue or Radio Sunshine shall be deemed to have been duly made and entered into by the Corporation and all such contracts, agreements or other arrangements shall be binding on the Corporation.

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