OFFICE OF THE OMBUDSMAN

PUBLIC REPORT

ON THE

BREACH OF LAWS BY THE CHAIRMAN OF THE VMA BOARD OF DIRECTORS

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REPUBLIC OF VANUATU

PUBLIC REPORT
ON THE BREACH OF LAWS
BY THE CHAIRMAN OF THE BOARD OF DIRECTORS
OF
THE VANUATU MARITIME AUTHORITY

The Ombudsman has decided to issue this report against the Chairman of the Vanuatu Maritime Authority(VMA), Mr Christopher Emelee to show how he abused the power and authority given to him to make the decisions in the VMA, and ignored the laws of the Republic Vanuatu. 

The VMA Board of Directors were appointed in 2003 when Mr Willie Posen was the Minister of Transport & Public Utilities. The Members of the Board appointed were, Mr Christopher Emelee as the Chairman of the Board and Mr Alphonse Delaveau as the Board’s Secretary. The other members of the Board were Mr Roy Wilson, Mr Emiliano Buletare, Mr Lennox Vuti and Mr Ernest Bani.

All the members of the VMA Board are deemed to be leaders under the Leadership Code Act. Section 5(i) of the Leadership Code Act specifies that, "the persons who are directors of companies or other bodies corporate wholly owed by the Government". The Vanuatu Maritime Authority is a statutory company that is wholly owned by the Government of the Republic of Vanuatu.

The main issue in this report is about the illegal employment of a foreign consultant by the VMA. The employment was not done in accordance with the Immigration Act, and the Labour(Work Permit) Act. 

The Principal Immigration Officer stated to the Ombudsman that he could not find any record that the Immigration Office has issued a Residency Permit to Mr Patrick Pene, but he confirmed that Mr Pene had been issued with only a visitor’s permit for four (4) months. 

Further to this, the Commissioner of Labour confirmed issuing the approval of his Work Permit, only after Mr Patrick Pene has completed his consultancy work with the VMA. Mr Pene started employment with the VMA before 23 April 2003 and by 12 August 2003 when the work permit was issued to him, Mr Pene had already left the country.

The Ombudsman received confirmation from two Board members at that time that the decision to employ Mr Patrick Pene by the VMA was not done by the VMA Board but personally done by Mr Christopher Emelee.

The Ombudsman finds that Mr Patrick Pene, a New Zealand Citizen, has breached Section 14(2) of the Immigration Act when entering Vanuatu on a visitors permit and worked temporary in a Government Statutory Body. 

The Ombudsman also finds that the Chairman of the Board of Directors of the Vanuatu Maritime Authority (VMA), Mr Christopher Emelee assisted Mr Patrick Pene to breach the Labour (Work) Permit Act when he decided to employ Mr Pene to do a consultancy work with the VMA, without following the requirements of the Labour (Work Permit) Act.

Further to this, the Ombudsman finds that the decision by Mr Emelee, Chairman of the VMA Board to employ Mr Pene and allow VMA to pay him with a total of 340,000 Vt, was done in breaches of the Immigration Act and Labour (Work Permit) Act, therefore Mr. Emelee has also breach Section 19 and Section 28 of the Leadership Code Act.

The Ombudsman therefore recommends that:

-	The Public Prosecutor prosecute Mr Christopher Emelee, the Chairman of the Board of Directors of the VMA and a leader for alleged breach of leadership code for his decision to employ Mr Patrick Pene without complying with the Immigration Act and the Work Permit Act.

-	The Labour Commissioner use his power under the Labour Work Permits Act to file a formal complaint against Patrick Pene and Christopher Emelee directly to the Public prosecutor for formal charges to be laid for alleged breach of the labour law 

-	The Authorities responsible for the appointment of the Chairman of the Board of Directors of VMA should terminate Mr Christopher Emelee as the Chairman of the Board of Vanuatu Maritime Authority.

TABLE OF CONTENTS

1. JURISDICTION
2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED
3. RELEVANT LAWS
4. OUTLINE OF EVENTS
5. RESPONSES BY SOME OF THOSE WHO WERE ISSUED WITH A WORKING PAPER
6. PRELIMINARY FINDINGS
7. RECOMMENDATIONS
8. INDEX OF APPENDICES

1. JURISDICTION

The Constitution, Ombudsman Act and the Leadership Code Act allow the Ombudsman to look into the conduct of the members of the government statutory bodies and leaders. This includes the conduct of the Chairman of the Board of Directors of the Vanuatu Maritime Authority (VMA) The Ombudsman can also look into the defects in laws or administrative practices, including breaches of the VMA Act, the Immigration Act, and the Labour (Work Permit) Act.

2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

2.1 The purpose of this Public Report is to provide the findings of the Ombudsman as provided under the Constitution, the Ombudsman Act and the Leadership Code Act. 

2.2 The scope of this enquiry in this Public Report is to establish the facts about the alleged breaches of the Immigration Act and the Labour (Work Permit) Act.

2.3 This Office collects information and documents by informal request, summons, letters, interviews and research.

3. RELEVANT LAWS

3.1 These relevant laws could be found in Appendix X.

(a) The VMA Act

(b) The Labour(Work Permit) Act [CAP 187]

[c] The Immigration Act [CAP 66]

4. OUTLINE OF EVENTS

4.1 On 23 April 2003, the Ombudsman’s Office received a copy of a letter about a travel arrangements to Santo for the VMA Board Members. Mr Patrick Pene was included in the names of Board Members who were travelling to Santo. It also stated that Mr Patrick Pene was appointed by the VMA Board as a consultant, and that he has commenced employment with the VMA before 23 April 2003. The trip to Santo was for the purpose for VMA duties (see Appendix "A" for details).

4.2 On 1 May 2003, the VMA Chairman of the Board of Directors, Mr Christopher Emelee wrote a letter to the Labour Department to request a Work Permit for Mr Patrick Pene. Mr Pene was already working for the VMA before this letter was sent to the Labour Department (see appendix "B" for details).

4.3 On 2 June 2003, the VMA Board Secretary, Mr Alphose Delaveau, wrote a letter to the Acting Commissioner of VMA and informed him about the Board’s decision to pay Mr Patrick Pene the amount of NZD$8,600.00 (see Appendix "C" for details).

4.4 On 3 June 2003, two (2) copies of VMA cheque payment vouchers totalling 340,000 Vt were paid to Mr Pene through the National Bank of Vanuatu. (see Appendix "D" for details).

4.5 On 3 June 2003, the Director of Corporate Services of VMA wrote a letter to the Acting Manager of Rates & Taxes Department. In this letter the Director Corporate Services of VMA enquired from the Rates & Taxes Office whether Mr Pene has obtained a licence to work as a Consultant with VMA.(see Appendix "E" for details).

4.6 On 3 June 2003, the Manager of the Rates and Taxes Office wrote a letter of response to the VMA Office to confirm that the Rates & Taxes Office has never issued a Business Licence to Mr Patrick Pene to work as a consultant in Vanuatu.(see Appendix "F" for details).

4.7 On 4 June 2003, the Chief Executive Officer of Vanuatu Investment Promotion Authority (VIPA) wrote a letter to the VMA to confirm that Mr Patrick Pene has no VIPA approval certificate to undertake Consultancy Business in Vanuatu.(see Appendix "G" for details).

4.8 On 4 June 2003, the VMA Director of Corporate Services wrote a letter to the Chairman of the VMA Board of Directors and queried about the status of Mr Patrick Pene who was employed by VMA as a consultant. This letter was sent after the Director of Corporate Services received confirmation from the Rates & Taxes Office and VIPA Office that Mr Pene’s employment by the VMA did not follow the Business Licence Act and the Foreign Investment Act of Vanuatu. (see Appendix "H" for details).

4.9 On 12 August 2003, the Commissioner of Labour wrote a letter to the Chairman of the Board of Directors of VMA to confirm the approval of the Work Permit for Mr Patrick Pene. This work permit was done temporary for four (4) months and was only effective as of 20 August 2003. (see Appendix "I" for details).

4.10 On 4 September 2003, the Ombudsman received a complaint of several allegations made against the board members of the Vanuatu Maritime Authority (VMA). One such allegation is the illegal employment of an expatriate consultant by the VMA which was not done in accordance with the Immigration Act, Labour (Work Permit) Act, Business Licence Act and the Foreign Investment Act.

4.11 On 11 September 2003, after the Ombudsman has received the complaint, he wrote letters to the following authorities for information and evidence to these allegations; the VMA, the Rates and Taxes Department, the Vanuatu Investment Promotion Authority (VIPA), and the Labour Department.

4.12 On 12 September 2003, the Ombudsman’s Office received confirmation statement from the Rates and Taxes that Mr Patrick Pene, a New Zealander, who was employed as a consultant with the VMA, has not been issued with a business license from the Rates and Taxes Office. (See appendix "J").

4.13 On 16 September 2003, the Ombudsman’s Office received confirmation from the Vanuatu Investment Promotion Authority (VIPA) that no VIPA approval certificate was given to Mr Patrick Pene prior to his commencement of consultancy services with the VMA. (See appendix "K").

4.14 On 25 September 2003, we received a response to the allegation from the Chairman of the board of directors of VMA. He stated that Mr Patrick Pene was legally employed as a consultant in accordance to Section 39 (1) & (2) of the VMA Act. The VMA or the Board of Directors have an absolute discretion and ability to engage the consultants and furthermore to pay them the market rates as it sees fit. The letter went on to say that the employment of Mr Pene was task specific for the VMA and the services were not offered to the wider public as a consultancy. Therefore VIPA approval certificate was not required. The Chairman also stated that the amount of remuneration fell short of the minimum requirement for VAT, That is why there was no need for registration with the Rates and Taxes Office. (see Appendix "Z" for details).

4.15 On 7 October 2003, the Ombudsman ‘s Office received a letter from the Acting Commissioner of Labour in response to the Ombudsman’s letter to the Commissioner of Labour. In that letter, the Acting Commissioner of Labour stated that Mr Patrick Pene was never issued with any work permit until the Labour Commissioner issued one work permit to him on 12 August 2003 for a period of four (4) months. He confirmed that the VMA’s letter dated 1st May 2003 was never submitted to the Labour Office. (see copy of that letter In Appendix "I"). The VMA’s letter for a work permit certificate for Mr Pene was only received late in July 2003. This was several months after Mr Pene has started and completed his work with the VMA. (see Appendix "L").

4.16 On 7 October 2003, Mr Lennox Vuti, a member of the VMA Board of Directors phoned the Ombudsman and stated that as a VMA Board Member, he was not informed about the employment of Mr Pene. He only learned about this from the newspaper. He went on to say that Mr Pene was not given the rightful permits to be employed in Vanuatu.

4.17 On 9 October 2003, Mr Ernest Bani, another member of the VMA Board stated in a letter to the Ombudsman that, Mr Pene was employed by the VMA by the sole arrangement made by Mr. Christopher Emelee, the Chairman of the VMA Board without the approval of the VMA Board . He went on to confirm that Mr Pene did not possess the proper documents or clearance from the authorities to undertake the assignment for the VMA.

4.18 On 8 October 2003, the Daily Post issued the statement from the former Leader of the Opposition, Mr Willie Jimmy. In that statement, Mr Jimmy has asked the Prime Minister to sack the Chairman of the VMA (see Appendix "T" for details).

5. RESPONSES BY SOME OF THOSE WHO WERE ISSUED WITH A WORKING PAPER 

5.1 Mr Ernest Bani, VMA board member, responded that Mr Patrick Pene is the family to Mr Christopher Emelee’s wife. He also confirmed that the VMA Board of Directors did not decide on the recruitment of Mr Pene. To confirm this, Mr Bani stated that there is no minutes of the Board’s meeting that had agreed on the recruitment of Mr Pene by the VMA.

Mr Bani also stated that Christopher Emelee does not hold a ni- Vanuatu citizen.

5.2 Mr Roy Wilson, another VMA board member, phoned to say thank you for sending him a copy of the Working Paper. He stated that he had resigned as a member of the Board of Directors of VMA because of the bad leadership of Mr Christopher Emelee. He confirmed that Christopher Emelee had made his own decision to recruit Mr Pene at the VMA. It was not the decision of the members of the board of directors.

5.3 Mr Joe Ligo, CEO of VIPA, responded that Section 2(1)(f) of The VIPA Act which defines "invest" and "investment" as not including.

"Entry into and performance of contract for the supply of goods or services by a supplier who is not a resident of Vanuatu".

If Mr Patrick Pene was engaged as a consultant for the sole purposes of doing consultancy work under a specific contract of engagement, for a set period, and he is not a resident of Vanuatu, then his engagement and activity with the VMA may not fall within the parameters of an investment which would require VIPA approval.(refer to Section 2(1) of the VIPA Act NO 15 of 1998 as amended).

Further, if after the lapse of the consultancy contract, the VMA Board recruited him under the Labour and Employment Act, as an employee, then again he would not be regarded as an investor if he was an employee. The VMA Board and Mr Pene would then need to comply with the requirements of Vanuatu Labour and Employment Laws.

5.4 Mr Leslie Garae, Principal Immigration Officer, responded that they could not recall or find records that Immigration Office has issued a residency permit to Mr Patrick Pene, but they believe that he was issued with the visitors permit and he was only allowed on this permit as a visitor to stay in Vanuatu up to the maximum of 4 months inside the 12 months.

6. PRELIMINARY FINDINGS

6.1 Finding 1: All VMA MEMBERS OF THE BOARD OF DIRECTORS ARE LEADERS IN ACCORDANCE WITH SECTION 5(I) OF THE LEADERSHIP CODE ACT.

The Ombudsman finds that all the members of the VMA Board of Directors are leaders in accordance with Section 5(i) of the Leadership Code Act. As persons who are appointed as members of the board of directors of the government owned statutory body, they are leaders under the Leadership Code Act

6.2 Finding 2: MR PATRICK PENE HAS BREACHED SECTION 14(2) OF THE IMMIGRATION ACT

The Ombudsman finds that Mr Patrick Pene, a New Zealand citizen has breached Section 14(2) of the Immigration Act, when he was allowed into Vanuatu on a visitor’s permit, but he was allowed to be recruited by the VMA as a consultant and was paid a salary by the VMA. Mr Pene was assisted by Mr Christopher Emelee, the VMA Chairman of the Board of Directors to breach the Immigration Act. 

6.3 Finding 3: EMPLOYMENT OF MR PATRICK PENE BY THE VMA WITHOUT A WORK PERMIT ISSUED UNDER THE LABOUR (WORK PERMIT) ACT[ CAP 187] AMOUNTED TO A CRIMINAL OFFENCE UNDER SECTION 2 OF THE ACT.

The Ombudsman finds that Mr. Pene and Mr. Emelee may both have committed an offence as a principal offender and an accomplice on 12 April 2003 the date Mr. Pene started work with VMA. This is because section 2 of the Labour [Work permits] Act makes it an offence for none citizen who takes up employment in Vanuatu without a proper work permit. The same section also creates a duty of an employer who wishes to employ a none citizen to ensure he applies for the work permit on the employees behalf before that none citizen takes up employment.

The Ombudsman finds that Mr Pene started work with the VMA before the Labour Commissioner issued a work permit certificate to him. The work permit was given to Mr Pene when he has left the country. The letter from the VMA to request a work permit was dated 1 May 2003. However, the Labour Office confirmed that they did not receive this letter until 12 August 2003, when the Labour Commissioner issued one work permit on 12 August 2003 to the VMA for Mr Pene. The work permit was issued after Pene has already been temporary employed by the VMA as from the mid April 2003. This was confirmed by the travel arrangements to Santo in which Mr Pene was included. Mr Pene was only issued with a Work Permit which was effective from 12 August to 12 December 2003. Therefore the VMA Board Chairman’s decision to employ Mr Pene was in breach of the Labour (Work Permit) Act.

6.4 Finding 4: THE VMA BOARD OF DIRECTORS CHAIRMAN’S DECISION TO EMPLOY MR PATRICK PENE WAS A BREACH OF S13(1) OF THE LEADERSHIP CODE.

The Ombudsman finds that all VMA Board members are leaders under the Leadership Code Act. As leaders they have a duty to observe and comply with the laws. The Ombudsman further finds that their Chairman’s decision to employ Mr Patrick Pene was not done in line with the, Immigration Act and the Labour (Work Permit) Act. The Ombudsman therefore finds that all the VMA Board members who contributed to these decisions have breached these laws and are all in breach of Section 13(1) of the Leadership Code Act.

7. RECOMMENDATIONS

7.1 The Ombudsman recommends that:

1. The Public Prosecutor should prosecute Mr Emelee, Chairman of the Board of Directors of VMA and a leader for alleged breach of leadership code for his unlawful decision to employ Mr Patrick Pene without following the provisions of the Immigration Act and the Work Permit Act. 

7.2 The Commissioner of Labour use his power under section16 of the Labour [Work Permits ] Act to file a formal complaint against Mr Emelee and Mr. Pene to the Public Prosecutor for breach of section 2 of the Labour [Work Permits ] Act .

7.3 All the authorities with power to appoint persons to be members of Board of Directors of VMA or any statutory Boards should not appoint Mr Christopher Emelee again to any responsible positions in any of the statutory bodies or the National Government.

Dated: 14 October 2005.

Peter K TAURAKOTO
OMBUDSMAN OF THE REPUBLIC OF VANUATU

8. INDEX OF APPENDICES

A Letter from the VMA Secretary about the trip to Santo.
B Letter to request a work permit for Mr Patrick Pene from the Labour Department.
C Letter from the VMA Secretary to the Acting Commissioner to arrange salaries for Mr Pene.
D Two copies of the cheque payment voucher that were made to the Vanuatu National Bank.
E Letter from VMA to Rates/Taxes to enquire whether Mr Pene was given a Business Licence.
F Letter from the Rates/Taxes Office to VMA to confirmed that no business licence was given to Mr Pene.
G Letter from VIPA to VMA to confirmed that no VIPA approval certificate was given to Mr Pene.
H Letter from MNFP to the Chairman of VMA about the status of Mr Pene.
I Letter from the Commissioner of Labour to the Chairman of VMA about the approval of the temporary work permit to Mr Pene effective from 12 August to 12 December 2003.
J Letter from Rates/Taxes Office to the Ombudsman to confirm that no business Licence was given to Mr Pene.
K Letter from VIPA to the Ombudsman to confirm that no VIPA approval certificate was given to Mr Pene.
L Letter from Labour Office to the Ombudsman to confirm that Work Permit for Mr Pene was only issued on 12 August 2003.
M Letter from VMA to the Minister about the board member’s allowance.
N Letter from VMA Secretary to the VMA Commissioner to pay the board member’s allowance.
O Letter from VMA Commissioner to the Chairman of VMA to raise the issues about the VMA allowances and the Ministerial order about the same.
P A copy of the VMA cheque on Mr Ernest Bani’s allowance of Vt 100,000.
Q Letter from Emiliano Buletari to the Ombudsman about the issue of Board member’s allowances and Mr Pene’s work permit.
R Letter from the Chairman of VMA to the Ombudsman about his responses to the allegations.
S Letter from Lennox Vuti to the Ombudsman about the issues of board member’s allowances and Mr Pene’s work permit.
T Copy of the daily post about Mr Willie Jimmy’s statement on the issue of VMA.
U Letter from Ernest Bani to the Ombudsman about the issues of board member’s allowances and Mr Pene’s work permit.

THE RELEVANT LAWS

BUSINESS LICENSE ACT NO. 19 OF 1998

INTERPRETATION

1. In this Act unless the context otherwise requires:

"approval certificate" means an approval certificate issued by the Vanuatu Foreign Investment Board;

"business" means any lawful form of trade, commerce, profession, craftsmanship, calling or other activity carried on for the purpose of gain, provided that a person shall not be deemed to carry on a business in respect of which his sole gain is by way of salary or wages;

"employ" means an individual who works under a contract of employment whether written or oral and any related expression shall be construed accordingly;
"Foreign Investment Board" means the Board established by the Foreign Investment Act 1998;

"foreign investor" has the same meaning in the Foreign Investment Act 1998.

BUSINESS LICENCES

2. (1) Subject to the exemptions contained in Schedule 2, no person shall carry on a business without a licence issued under this Act.

(2) Any person (other than a person exempted under Schedule 2) who carries on a business without a licence shall be guilty of an offence.

Penalty: fine not exceeding Vt 500,000 or imprisonment not exceeding 1 year or both.

(3) Where a person is charged under this section with carrying on any business without a licence, the burden of proving that a licence was issued to him in respect of the current year shall be on that person.

PENALTIES

23. (1) Any person who fails to pay a requisite licence fee including increase imposed in accordance with section 18 (4) within a period of six (6) months from the date when the fee is due shall be guilty of an offence and liable on conviction to a fine not exceeding Vt 500,000.

(2) Any person who fails to comply with any condition imposed in accordance with section 5 shall be guilty of an offence and liable on conviction to a fine not exceeding Vt 50,000.

(3) Any person who obstructs the proper exercise of the powers of an authorised person under section 16 shall be guilty of an offence and liable on conviction to a fine not exceeding Vt 100,000 or to imprisonment not exceeding three (3) months or to both.

(4) Any person who knowingly makes a false declaration for the purposes of evading or attempting to evade all or any part of the licence fee payable under this Act shall be guilty of an offence and liable on conviction to a fine not exceeding Vt 500,000 or to imprisonment not exceeding one (1) year or to both.

(5) Where an offence under subsections (1), (2) and (4) of this section has been committed by a corporate body, every person who at the time of the commission of the offence was a director, general manager, secretary or other senior officer of that body corporate or acting or purporting to act in any such capacity shall be guilty of the offence unless he proves that the offence was committed without his consent or knowledge and that he exercised all such diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions and capacity and in all the circumstances.

VANUATU MARITIME AUTHORITY (AMENDMENT) ACT NO. 29 OF 2002

27. (1) Fees and allowances

(1) Members of the Authority are entitled to such fees and allowances as are prescribed by the regulations.

(2) Regulations made under subsection (1) are not to come into force, unless they have been approved in writing by the Minister in consultation with the Minister responsible for finance".

CONSULTANTS, SPECIALISTS, ETC

39. (1) The Authority or the Commissioner may appoint consultants, specialists or advisory committees to advise on the exercise of functions or powers of the Authority.

(2) The Authority or the Commissioner may:

(a) pay to any such persons or members of committees such remuneration by way of fees, salary or allowances, and such travelling allowances and expenses, as the Authority or the Commissioner thinks fit; and

(b) contribute towards the remuneration, travelling allowances and expenses of any such persons or members of committees, whose employers provide services for the Authority of the Commissioner.

FOREIGN INVESTMENT ACT NO. 15 OF 1998

PART 2

APPROVAL OF FOREIGN INVESTMENT

PURPOSE OF PART

4 The purpose of this Part is to establish and regulate a system for appraising investment proposals and granting approvals to foreign investors to invest in Vanuatu.

FOREIGN INVESTMENT WITHOUT APPROVAL CERTIFICATE PROHIBITED

5. (1) A foreign investor must not invest in Vanuatu without first obtaining an approval certificate.

(2) Where a foreign investor invests in Vanuatu without an approval certificate or engages in an investment not authorised by an approval certificate then, every contract and every agreement entered into by that foreign investor and relating to that investment will be void and of no effect.

(3) A transfer of a legal or equitable interest or an increase in the share capital or any proprietary interest in an enterprise, that has the effect of the enterprise becoming a foreign investor shall not be valid or of any effect unless an approval certificate has first been obtained.

APPLICATION FOR APPROVAL CERTIFICATE

6. (1) A foreign investor proposing to invest in Vanuatu or an enterprise that proposes to become a foreign investor must apply to the Board for an approval certificate.

(2) An investment proposal must contain full particulars of:

(a) the name and address of the foreign investor;

(b) the name and address of the legal and beneficial owners of the foreign investor and the proportionate interest of each owner;

(c) if the foreign investor is already in business beyond Vanuatu, the principal place at which the business of the foreign investor is carried on and a description of that business:

investor no later than 7 days after the decision. Where the Board approves an application with or without conditions, the Board may not alter that approval or add to the conditions subsequent to the issue of a certificate of approval under subsection (7).

7. A certificate of approval in the form to be prescribed must be issued by the CEO within 7 days of the date of the Board’s approval and will remain valid for a period of 6 months from a date to be specified in the certificate.

8. Subject to a foreign investor satisfying the Board that implementation of the investment has been pursued with all diligence, the Board must renew the certificate for such further periods of 6 months as may be required by the foreign investor.

9. When the Board is notified and satisfied by the foreign investor that the investment for which a certificate of approval has been issued is a going concern the CEO must issue a notice to the investor that the certificate of approval will remain valid.

EFFECT OF APPROVAL CERTIFICATE

9 (1) Subject to compliance with the law and the statutory declaration referred to in section 6(2)(i) being correct in every material respect and subsection (2) an approval certificate will entitle the foreign investor named in the certificate to engage in the investment specified in the certificate.

(2) A foreign investor must diligently pursue the investment specified in the certificate without any material deviation from the substance of the investment proposal and where there is a material deviation the Board must not revoke the certificate of approval without first taking into account the circumstances that gave rise to that deviation.

RESIDENCE PERMITS, WORK PERMITS AND BUSINESS LICENCE

10 (1) Subject to subsection (2), an approval certificate entitles the foreign investor named in the certificate:

(a) to be issued the number of residence permits specified in the approval certificate; and
(b) to be issued the number of work permits specified in the approval certificate; and
(c) if the project requires a business licence, to be issued a business licence.

(2) The foreign investor must still comply with the requirements of:

(a) the Immigration Act; and
(b) the Labour (Work Permits) Act; and
(c) the Business Licences Act; and
(d) any other law of Vanuatu that requires the granting of a permit, licence or other approval (however described) before undertaking the activity involved in the investment proposal.

(3) Each foreign investor is entitled to residence permits and work permits for at least 2 positions requiring professional, technical or managerial expertise.

(4) In deciding the number and duration of additional residence and work permits to which a foreign investor is entitled, the Board must have regard to:

(a) the nature and extent of the activity involved in the project;
(b) the number of other positions requiring professional, technical or managerial expertise;
(c) the availability of Vanuatu citizens with that particular professional, technical or managerial expertise who are prepared and available for that activity;
(d) the value of the assets to be used for the investment.

(5) The Board must specify in the certificate the period for which each residence permit and work permit is to remain in force. This period must:

(a) be the same for the work permit and residence permit for the one position; and
(b) for a residence permit for the foreign investor – be not less than 3 years nor more than the maximum decided in accordance with subsection (6); and
(c) for any other residence permits and work permits to which the foreign investor is entitled – be not less than 3 years or more than 5 years.

(6) The maximum duration of residence permits and work permits is:

(a) if the foreign investor’s certificate stated that the foreign investor’s assets, are to be invested in Vanuatu at least VT.5,000,000 – 10 years; or
(b) if the foreign investor’s certificate stated that the foreign investor’s assets, are to be invested in Vanuatu at least VT50,000,000 – 10 years; or
(c) if the foreign investor’s certificate stated that the foreign investor’s assets, are to be invested in Vanuatu at least VT100,000,000 – 15 years.

(7) If the foreign investor wishes to renew a residence permit or work permit, he or she must apply under the Immigration Act or Labour (Work Permits) Act.

(8) When issuing an approval certificate, the Board must also give the foreign investor a summary of his or her obligations;

(a) to train Vanuatu citizens; and
(b) to obtain permits, licences or other government approvals (however described) under other laws.

(9) Subsection (8) does not relieve the foreign investor from the requirement to find out his or her obligations under other laws of Vanuatu in detail and to comply with those laws.

(10) A foreign investor to whom an approval certificate has been issued may apply to the Board for renewal of the certificate.

OFFENCES

26 (1) Every person who contravenes the provisions of this Act is guilty of an offence and on conviction is liable to a fine not exceeding VT.500.000.

(2) Where a body corporate is guilty of an offence and that offence is proved to have been committed with the connivance of, or attribute to the neglect on the part of a director, manager, secretary, or other officer or any person purporting to act in any such capacity, that person as well as the body corporate will be guilty of that offence and be liable to be punished accordingly.

LABOUR (WORK PERMITS) ACT

INTERPRETATION AND APPLICATION

1, (1) In this Act, unless the context otherwise requires –

"Commissioner of Labour" means the officer referred to as such in section 2 of the Employment Act Cap.160;

"Employment" means the performance by an employee of a contract of service, whether written or not, and whether paid or unpaid and the words "employ", "employed", and "employee" shall be construed accordingly;

"Occupation" means any commercial or industrial activity, intellectual or manual work or any specific work or task which a person may execute as part of his employment;

(2) The provisions of this Act shall not apply to-

(a) any person appointed by the Government to a post within the public service;
(b) any person recruited under a written contract for employment in government service;
(c) any person rendering voluntary service in Vanuatu under any technical aid scheme where such service has been authorised by the Government;
(d) any person entering Vanuatu at the request or invitation of the Government or as consultant to the Government;
(e) any other class or classes of persons as the Minister may by Order prescribe.

WORK PERMITS

2. (1) It shall be an offence for any non-citizen worker to whom this Act applied to take up or to continue in any employment in Vanuatu, without first having obtained a work permit or, where such permit has been issued, otherwise than in accordance with the conditions thereof.

(2) Every employer who wishes to employ any non-citizen worker shall make application for a work permit to the Commissioner of Labour in the form and manner prescribed in Schedule 1.

(3) The commissioner Labour may issue work permits valid

(a) where the employment is not the subject of a written contract, for 2 years;
(b) where the employment is or is to be the subject of a written contract, for 3 years or the duration of the contract, whichever period is the less.

(4) All work permits issued by the Commissioner of Labour shall contain-

(a) the full name and business address of the employer;

(b) the full name of and the occupation to be carried out by the employee;
(c) a photograph of the employee;
(d) details of the residence permit of the employee in cases where the employee is subject to immigration control;

OFFENCES

6. (1) It shall be an offence for any employer to employ any non-citizen worker in respect of whom a work permit has not been issued or whose work permit has been issued in respect of employment by another employer.

(2) It shall be an offence for any employer to continue to employ any non-citizen worker in respect of whom a work permit has been issued for such employment beyond the date of expiry of such permit.

(3) It shall be an offence for any employer to employ any non-citizen worker in respect of whom a work permit has been issued in any occupation other than that specified in such work permit.

REPORT OF OFFENCES

16. The Commissioner of Labour may report offences against this Act or any regulations made under the provisions thereof directly to the Public Prosecutor.

OFFENCES

17 (1) Any person who shall furnish any information which he knows to be false or does not believe to be true, or shall produce any book or document which he know to be incorrect, to the Commissioner of Labour or a labour officer acting in the exercise of his powers or functions under this Act shall be guilty of an offence against this Act.

(2) Any person who shall wilfully resist or obstruct the Commissioner of Labour or a labour officer, as the case may be, in the lawful performance of his duties under this Act shall be guilty of an offence against this Act.

PENALTIES

18. (1) Any person convicted of an offence against the provisions of section 13 shall be liable in the case of a first offence to a fine not exceeding VT.10,000 and in the case of a second or subsequent offence to a fine not exceeding VT.20,000 or to imprisonment for a term not exceeding 1 month or to both such fine and imprisonment.

(2) Any person convicted of an offence against the provisions of this Act other than section 13 shall be liable in the case of a first offence to a find not exceeding VT50,000 and in the case of a second or subsequent offence to a fine not exceeding VT100,000 or to imprisonment for a term not exceeding 6 months or to both such fine and imprisonment.

(3) In this section, the expression "second or subsequent offence’ means an offence which has been committed within 5 years of a previous conviction for the same offence.

AMENDMENT TO SECTION 1

1. (1) Insert the following definitions, so that all definitions are in alphabetical order:

"approval certificate" means an approval certificate issued by the Foreign Investment Board;

"employer" means a person for whom a person performs a contract for service, whether the contract is written or not and whether or not the first person pays the second person;

"Foreign Investment Board" means the Board established by the Foreign Investment Act 1998;

"foreign investor" has the same meaning as in the Foreign Investment Act 1998;

"temporary work permit" means a temporary work permit issue under section 5H.

NEW SECTIONS

After section 5, insert the following sections:

"FOREIGN INVESTORS ENTITLED TO WORK PERMITS"

5A (1) A foreign investor who has received an approval certificate from the Foreign Investment Board for an investment proposal is entitled to be issued with the work permits specified in the certificate for the proposal.

(2) If a foreign investor:

(a) produces an approval certificate to the Commissioner of Labour; and
(b) lodges an application in accordance with subsection 2(2); and
(c) pays the work permit tax in accordance with section 3 and the application fee;

the Commissioner must issue to the investor the number of work permits specified in the certificate, for the period specified in the certificate.

CONSTITUTION OF THE REPUBLIC OF VANUATU

CONDUCT OF LEADERS

66(1) Any person defined as a leader in Article 67 has a duty to conduct himself in such a way, both in his public and private life, so as not to—

(a) place himself in a position in which he has or could have a conflict of interests or in which the fair exercise of his public or official duties might be compromised;
(b) demean his office or position;
(c) allow his integrity to be called into question; or
(d) endanger or diminish respect for and confidence in the integrity of the Government of the Republic of Vanuatu.

66(2) In particular, a leader shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by sub article (1).

DEFINITION OF A LEADER

For the purposes of this Chapter, a leader means the President of the Republic, the Prime Minister and other Ministers, members of Parliament, and such public servants, officers of Government agencies and other officers as may be prescribed by law.

LEADERSHIP CODE ACT NO. 2 OF 1998

LEADERS

5 (i) persons who are:

(i) directors of companies or other bodies corporate wholly owned by the Government; and
(ii) appointed as directors by the government:

DUTIES OF LEADERS

13. (1) A leader must:

(a) Comply with and observe the law;
(b) Comply with and observe the fundamental principles of leadership contained in Article 66 of the Constitution;
(c) comply with and observe the duties obligations and responsibilities established by this Code or any other enactment that affects the leader; and
(d) not influence or attempt to influence or exert pressure on or threaten or abuse persons carrying out their lawful duty.

BREACHES OF LEADERSHIP CODE 

BREACH OF LEADERSHIP CODE

19. A person who does not comply with Part 2, 3 or 4 is guilty of a breach of this Code and is liable to punishment in accordance with Part 6.

MISUSE OF PUBLIC MONEYS

20. A leader must not use, or agree to the use of, any public money for a purpose other than the purpose for which it may lawfully be used.

OBEYING THE LAW

28. A leader acting in his or her capacity as a leader who fails to abide by an enactment that imposes on the leader a duty, obligation, or responsibility is in breach of this Code.

LEADER NOT TO HOLD ANY OTHER PUBLIC OFFICE OR POSITION

25. A leader must not hold any other public office or position for which he or she receives a salary, payment or other benefit of any kind, whether financial or otherwise, from the government or a statutory body, if that other office or position conflicts with or interferes in any way with the ability of the leader to fulfil his or her principal tasks and duties as a leader. 

IMMIGRATION ACT CAP 66

PERMITS TO ENTER AND RESIDE

13. (1) The Principal Immigration Officer may upon application being made in the form prescribed under this Act issue a permit in the form prescribed under this Act authorising any person to enter and reside in Vanuatu, upon such conditions as the Principal Immigration Officer may think fit.

(2) The Principal Immigration Officer may in his discretion extend a permit issued under subsection (1) of this section, but shall not grant or extend a permit so that the holder becomes entitled to enter Vanuatu without a permit under paragraph (a) of subsection (1) of section 12 unless so directed by the Minister.

(3) Notwithstanding any other provision of this Act the Principal Immigration Officer may cancel a permit if –

(a) he is satisfied that the holder of the permit made a false declaration in respect of the particulars required when applying for the permit; or

(b) the holder of the permit is convicted of an offence carrying liability to a sentence of imprisonment whether or not as an alternative to a fine.

VISITOR'S PERMIT

14. (1) The Principal Immigration Officer may issue a visitor's permit, subject to such conditions as may be specified therein, to a visitor if he is satisfied that the visitor has a ticket or other means of travelling from Vanuatu to some other country which he will be able to enter.

(2) A visitor's permit shall, subject to the provisions of this Act, entitle a visitor to remain in Vanuatu for a period or periods in the aggregate not exceeding 4 months in any period of 12 months.

(3) The Principal Immigration Officer may cancel a visitor's permit if he is satisfied that the visitor –

(a) is not a person to whom a visitor's permit ought to have been issued;
(b) has become a prohibited immigrant;
(c) has become incapable of supporting himself or his dependents;
(d) has behaved in a manner prejudicial to the peace and good order of Vanuatu;
(e) is in breach of any of the conditions of his permit; or
(f) has been convicted of any offence.