Directions by the Commission
Open ↗(1) The Commission may, from time to time, issue directions in writing to any person regarding the compliance or non-compliance of any licence conditions, and including but not limited to the remedy of a breach of a licence condition, and the provisions of this Act or its subsidiary legislation.
(2) Before issuing a direction under subsection (1), the Commission shall issue a notice in writing to the person specifying the nature of required compliance.
(3) The person shall be granted an opportunity to be heard or may submit a written submission within a reasonable time period specified in the notice on the reasons for his conduct or activity.
(4) After the expiry of the notice specified in subsection (3), the Commission shall take into consideration any reasons provided by the person before making a decision in relation to the relevant conduct or activity of the person.
(5) After due consideration of any reasons provided by the person, the Commission may issue a direction under subsection
(1) requiring the person to take specified action directed towards ensuring that the person does not contravene or continue to contravene any of the conditions of his licence and/or any of the provisions of this Act or its subsidiary legislation.
(6) The Commission shall give the person written notice of its direction as soon as practicable.
(7) The person shall comply with the direction issued by the Commission under subsection (6).
(8) A direction issued by the Commission under this Chapter shall be registered as soon as practicable.
(9) The direction shall be effective from the date of registration or such later date as the Commission may specify.
(10) The direction shall expire on such date as the Commission may specify in the written instrument or, if no date is specified, the direction shall be in operation until it is revoked.
Modification, variation or revocation of a direction by the Commission
Open ↗(1) The Commission may modify, vary or revoke a direction.
(2) The procedure set out in section 51 shall apply mutatis mutandis in respect of any modification, variation or revocation of a direction.
Offence for non-compliance with a direction of the Commission
Open ↗A person who fails to comply with a direction of the Commission commits an offence and shall, on conviction, be liable to a fine not exceeding three hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both.
Register of directions
Open ↗The Commission shall maintain a register of all directions issued by the Commission, including any written instruments modifying, varying or revoking a direction, in accordance with Chapter 6 of this Part.
Chapter 2 — Determination
Determination by the Commission
Open ↗(1) The Commission may, from time to time, determine any matter specified in this Act as being subject to the Commission’s determination.
(2) The Commission may conduct an inquiry to decide whether a determination should be made, either—
(a) in response to a written request from a person; or
(b) on its own initiative.
(3) Notwithstanding subsection (1), the Commission shall not conduct an inquiry unless it is satisfied that the matter is of significant interest to either the public or to current or prospective licensees under this Act.
(4) An inquiry shall be carried out in accordance with Chapter 3 of this Part, and at a standard and in a manner consistent with the provisions of this Act and its subsidiary legislation and any instrument issued, made or given under this Act.
(5) Within forty-five days from the conclusion of the inquiry, the Commission shall determine the matter.
(6) Any determination by the Commission shall be consistent with the objects of, and any requirements provided in, this Act which are relevant to the particular matter or activity.
(7) A determination made by the Commission under this Chapter shall be registered as soon as practicable.
(8) A determination shall come into force on the date of registration or such later date as the Commission may specify.
(9) A determination shall expire on such date as the Commission may specify or, if no date is specified, the determination shall be in force until the determination is revoked.
Modification, variation or revocation of a determination by the Commission
Open ↗(1) Subject to the provisions of this Act, the Commission may modify, vary or revoke a determination, in response to a written request or on its own initiative.
(2) The procedures set out in section 55 shall apply mutatis mutandis in respect of any modification, variation or revocation of the determination.
Register of determinations
Open ↗The Commission shall maintain a register of all determinations made by the Commission, including any written instrument modifying, varying or revoking a determination, in accordance with Chapter 6 of this Part.
Inquiry by the Commission
Open ↗(1) The Commission shall, in response to a Ministerial direction, hold a public inquiry on any matter of a general nature which relates to the administration of this Act or its subsidiary legislation which will serve the objects of this Act.
(2) The Commission may hold a public inquiry under subsection (1)—
(a) in response to a written request from a person; or
(b) on its own initiative,
only if it is satisfied that the matter is of significant interest to either the public or to current or prospective licensees under this Act.
Combining two or more inquiries
Open ↗The Commission may combine two or more inquiries into a single inquiry.
Conduct of an inquiry
Open ↗(1) An inquiry under this Part is to be conducted as and when the Commission thinks fit.
(2) The Commission may, for the purposes of an inquiry, exercise any or all of its investigation and information-gathering powers under Chapters 4 and 5 of this Part.
Inquiry shall be public
Open ↗(1) Subject to section 62, if the Commission decides to hold a public inquiry or is directed to hold a public inquiry, the Commission shall publish, in the manner that it deems appropriate, notice of—
(a) the fact that it is holding the inquiry;
(b) the period during which the inquiry is to be held;
(c) the nature of the matter to which the inquiry relates;
(d) the period, of at least forty-five days, within which, and the form in which, members of the public are invited to make submissions to the Commission about that matter;
(e) the matters that the Commission would like the submissions to deal with; and
(f) the address or addresses to which the submissions may be sent.
(2) The Commission does not need to publish at the same time or in the same manner the notice of all matters referred to in subsection (1).
(3) The Commission shall consider any submissions received within the time limit as specified in the notice.
(4) The submissions made by the members of the public shall be in the form and of the nature as specified in the notice.
Exceptions to a public inquiry
Open ↗Notwithstanding section 61, an inquiry or a part of an inquiry may be conducted in private if the Commission is satisfied that—
(a) the documents or information that may be given, or a matter that may arise during the inquiry or a part of the inquiry, is of a confidential nature; or
(b) an inquiry or part of an inquiry of a matter, or part of a matter, in public would not be conducive to the due administration of this Act.
Confidential material not to be disclosed
Open ↗(1) If an inquiry takes place in public and the Commission is of the opinion that—
(a) the evidence or other material presented to the inquiry; or
(b) the material in written submissions lodged with the Commission,
is of a confidential nature, the Commission may direct that—
(aa) the evidence or material should not be published; or
(bb) its disclosure be restricted.
(2) A person shall not without reasonable excuse fail to comply with a direction under subsection (1).
Directions about an inquiry
Open ↗(1) If an inquiry or part of an inquiry takes place in private, the Commission—
(a) shall give a direction as to the persons who may be present at the inquiry or part of the inquiry; and
(b) may give a direction restricting the disclosure of evidence or other material presented at the inquiry or part of the inquiry.
(2) Notwithstanding section 53, a person who without reasonable excuse fails to comply with a direction given under subsection
(1) commits an offence and shall, on conviction, be liable to a fine not exceeding twenty thousand ringgit or to imprisonment for a term not exceeding six months or to both.
Report on an inquiry
Open ↗(1) The Commission shall publish a report, setting out its findings as a result of any inquiry it conducts.
(2) The Commission shall publish the report within thirty days of the conclusion of the inquiry.
(3) The Commission shall not include in the report any material—
(a) that is of a confidential nature;
(b) the disclosure of which is likely to prejudice the fair trial of a person;
(c) which would involve the unreasonable disclosure of personal information about any individual (including a deceased individual); or
(d) that is the subject of a direction under section 63 or 64.
Protection from civil action
Open ↗Civil proceedings shall not lie against a person in respect of any loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith:
(a) the making of a request under section 58; or
(b) the making of a statement, or giving of a document or information, to the Commission in relation to an inquiry under this Chapter.
Register of reports
Open ↗The Commission shall maintain a register of all reports made pursuant to an inquiry under this Chapter, in accordance with the provisions in Chapter 6 of this Part.
Chapter 4 — Investigation for Purposes of Administration, Inquiry, etc
Investigation by the Commission
Open ↗Notwithstanding the provisions of any other written law, the Commission shall investigate any matter pertaining to the administration of this Act or its subsidiary legislation if—
(a) the Minister directs the Commission to conduct an investigation into any civil or criminal offence under
this Act or its subsidiary legislation which may have been or may be committed; or
(b) the Commission has grounds to believe that a civil or criminal offence under this Act or its subsidiary legislation was, is or will be committed.
Complaints to the Commission
Open ↗(1) The Commission may conduct an investigation on a matter referred to in section 68 upon a written complaint by a person.
(2) The complaint shall specify the person against whom the complaint is made (“the respondent”).
(3) If it appears to the Commission that—
(a) a person wishes to make a complaint; and
(b) the person requires assistance to formulate the complaint or to reduce it into writing,
it is the duty of the Commission to take reasonable steps to provide appropriate assistance to the person.
(4) If a complaint has been made to the Commission under this section, the Commission may make inquiries of the respondent for the purpose of deciding—
(a) whether the Commission has power to investigate the matter to which the complaint relates; or
(b) whether the Commission should, in its discretion, investigate the matter.
(5) If the Commission decides not to investigate, or not to investigate further, a matter to which a complaint relates, it shall as soon as practicable and in such manner as it thinks fit, inform the complainant and the respondent of the decision and the reasons for the decision.
Conduct of investigation
Open ↗(1) Before beginning an investigation of a matter to which the complaint relates, the Commission shall inform the respondent that the matter is to be investigated.
(2) An investigation under this Part is to be conducted as the Commission thinks fit.
(3) The Commission may, for the purposes of an investigation, obtain information from such persons as it thinks fit.
(4) Subject to subsection (5), it is not necessary for a complainant or a respondent to be given an opportunity to appear before the Commission in connection with an investigation.
(5) The Commission shall not, as a result of the investigation, make a finding that is adverse to a complainant or a respondent unless it has given the complainant or respondent an opportunity to make submissions about a matter to which the investigation relates within a time period of not less than thirty days.
(6) The Commission shall consider the submissions made by the complainant or the respondent under subsection (5) before making its decision.
Report on investigation
Open ↗(1) After concluding an investigation, the Commission may prepare and give to the Minister a report.
(2) The report under subsection (1) shall cover—
(a) the conduct of the investigation concerned;
(b) any findings that the Commission has made as a result of the investigation;
(c) the evidence and other material on which those findings were based; and
(d) such other matters relating to, or arising out of, the investigation as the Commission thinks fit or as the Minister directs.
Publication of reports
Open ↗The Minister may direct the Commission to publish a report of an investigation if the Minister is satisfied that the publication would be in the national interest.
Chapter 5 — Information-gathering Powers
Provision of information
Open ↗(1) This section applies to any person if the Commission has reason to believe that the person—
(a) has any information (including but not limited to accounts and records) or any document that is relevant to the performance of the Commission’s powers and functions under this Act or its subsidiary legislation; or
(b) is capable of giving any evidence which the Commission has reason to believe is relevant to the performance of the Commission’s powers and functions under this Act or its subsidiary legislation.
(2) Notwithstanding the provisions of any other written law, the Commission may, by a written notice, direct any person—
(a) to give the Commission, within the period and in the manner and form specified in the notice, any such information;
(b) to produce to the Commission, within the period and in the manner specified in the notice, any such documents, whether in a physical form or in an electronic media;
(c) to make copies of any such documents and to produce those copies to the Commission within the period and in the manner specified in the notice;
(d) if the person is an individual, to appear, at a private hearing, before the Commission at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents, whether in a physical form or in an electronic media;
(e) if the person is a body corporate or a public body, to cause a competent officer of the body to appear, at a private hearing, before the Commission at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents, whether in a physical form or in an electronic media; or
(f) if the person is a partnership, to cause an individual who is a partner in the partnership or an employee of the partnership to appear, at a private hearing, before the Commission at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents, whether in a physical form or in an electronic media.
(3) The Commission shall allow the person so directed under subsection (2) a reasonable time to give and to produce any information and/or documents specified in the notice.
(4) Any person required to provide information under subsection (2) shall ensure that the information provided is true, accurate and complete and such person shall provide a representation to that effect, including a representation that he is not aware of any other information which would make the information provided untrue or misleading.
Offence for non-compliance
Open ↗Notwithstanding section 53, a person who fails to comply with a direction of the Commission under this Chapter commits an offence and shall, on conviction, be liable to a fine not exceeding twenty thousand ringgit or to imprisonment for a term not exceeding six months or to both.
Offence for giving false or misleading information, evidence or document, etc.
Open ↗Notwithstanding section 53, a person who fails to disclose or omits to give any relevant information or evidence or document, or provides information or evidence or document that he knows or has reason to believe is false or misleading, in response to a direction issued by the Commission commits an offence and shall, on conviction, be liable to a fine not exceeding twenty thousand ringgit.
Proof of compliance
Open ↗(1) A person shall, if at any time called upon in writing by the Commission to do so, produce to the Commission all such evidence and provide all such information as the person may have
relating to his compliance with any of the provisions of this Act or its subsidiary legislation, as the Commission may generally, or in relation to any particular case, require.
(2) Subsection (1) shall not affect any other power conferred on the Commission under this Act.
Commission may retain documents
Open ↗(1) The Commission may take, and retain for as long as is necessary, possession of a document produced under this Chapter.
(2) The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Commission to be a true copy.
(3) Notwithstanding the provisions of any other written law, the certified copy shall be received by all courts and tribunals as evidence as if it were the original.
(4) Until a certified copy is supplied, the Commission shall, at such times and places as the Commission thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorized by that person, to inspect and make copies of, or take extracts from, the document.
Incorrect record
Open ↗A person shall not, in purported compliance with a requirement imposed by the record-keeping rules made under section 268, make a record of any matter or thing in such manner that it does not correctly record the matter or thing.
Record of information
Open ↗(1) The Commission shall maintain a record of all information, evidence or documents received pursuant to the directions given under subsection 73(2).
(2) The record shall be made available to the public.
Publication of information
Open ↗(1) The Commission may publish information received in the course of exercising its powers and functions under this Chapter if it is satisfied that the publication is consistent with the objects of this Act.
(2) The Commission shall consider the commercial interest of the parties to whom the information relates before publishing the information.
(3) The Commission shall not publish any information or any part of any information disclosed to it if the publication would—
(a) disclose a matter of a confidential character;
(b) be likely to prejudice the fair trial of a person; or
(c) involve the unreasonable disclosure of personal information about any individual (including a deceased person),
but the Commission may publish an abstract relating to such information provided that the particulars in the abstract shall not be arranged in any way which would compromise or prejudice the person providing such information.
Register of all matters
Open ↗(1) The Commission shall maintain a register, in both physical form and electronic media, of all matters which are required to be registered under this Act and its subsidiary legislation.
(2) A person may, on payment of the charge (if any) to be decided by the Commission—
(a) inspect the register; and
(b) make a copy of, or take extracts from, the register.
(3) If a person requests that a copy be provided in an electronic media, the Commission may provide the relevant information—
(a) on a data processing device; or
(b) by way of electronic transmission.
Chapter 7 — Notification and Resolution of Disputes
Disputes
Open ↗(1) A dispute between two or more persons (“the parties”) regarding any matter under this Act or its subsidiary legislation shall first be attempted to be resolved by negotiation between the parties.
(2) If one of the parties to the dispute has provided an undertaking which is relevant to the subject-matter of the dispute and the undertaking has been registered by the Commission in accordance with Chapter 11 of this Part, the parties may adopt the conditions of the undertaking for the purposes of resolving the dispute.
(3) If the parties to the dispute cannot or otherwise fail to reach an agreement, and no relevant undertaking has been registered, or if one of the parties to the dispute does not wish to adopt the conditions of the undertaking, the parties may seek resolution of the dispute by the Commission, if this Act or its subsidiary legislation expressly provides for such resolution.
Notification of a dispute
Open ↗A party to a dispute may, in writing, notify the Commission of the dispute.
Commission to act only upon notification
Open ↗Subject to section 83, the Commission may only resolve a dispute under this Chapter if it is notified in writing of the dispute.
Commission may publish guidelines
Open ↗The Commission may publish guidelines setting out the principles and procedures which it may take into account in resolving disputes or a class of disputes under this Chapter.
Commission to decide notified dispute
Open ↗(1) Upon receipt of the notification of the dispute referred to in section 83, the Commission shall, as soon as practicable, convene to decide the dispute.
(2) The Commission shall be bound under subsection (1) to convene to decide a dispute if it is satisfied that—
(a) an agreement will not be reached, or will not be reached within a reasonable time;
(b) the notification of the dispute is not trivial, frivolous or vexatious; and
(c) the resolution of the dispute would promote the objects of this Act.
(3) Subject to the objects of this Act and any guidelines issued by the Commission under this Chapter, the Commission may resolve the dispute upon such terms and conditions as it may deem fit.
Decision to be in writing
Open ↗(1) The terms and conditions of any resolution of a dispute by the Commission under this Chapter shall be accompanied with reasons and be in writing.
(2) The Commission shall provide the parties to the dispute with a copy of its decision as soon as practicable.
(3) The decision of the Commission shall be binding on the parties.
Register of decisions
Open ↗(1) The Commission shall register all decisions it makes under this Chapter, in accordance with Chapter 6 of this Part.
(2) The register shall contain—
(a) the names of the parties to the dispute;
(b) a general description of the matter pertaining to the decision; and
(c) the date of the decision,
but not the terms and conditions of the decision.
Enforcement
Open ↗(1) The Commission may direct a party to a dispute to abide by the decision of the Commission in that dispute.
(2) A decision made by the Commission under this Chapter may be enforced by the High Court as if the decision is a judgment of such Court provided that a certificate has been issued by the Commission to the complainant for leave to proceed to the Court for the enforcement of the decision except in the case of an injunction.
(3) No certificate is required if an action is taken by the Commission under this section.
Chapter 8 — Registration of Agreements
Application for the registration of agreements
Open ↗The parties to a written agreement shall apply to the Commission for the registration of the agreement, if this Act requires such registration.
When the Commission shall register the agreement
Open ↗The Commission shall register the written agreement if the Commission is satisfied that the agreement is consistent with—
(a) the objects of this Act;
(b) any relevant instrument under this Act; and
(c) any relevant provisions of this Act or its subsidiary legislation.
Effect of registration
Open ↗(1) An agreement, which is required to be registered under this Act, shall only be valid and enforceable upon its registration.
(2) The Commission may direct any party to a registered agreement to comply with the registered agreement.
(3) A direction made by the Commission in respect of a registered agreement may be enforced by the High Court as if the direction is a judgment of such Court provided that a certificate has been issued by the Commission to the complainant for leave to proceed to the Court for the enforcement of the direction except in the case of an injunction.
(4) No certificate is required if an action is taken by the Commission under this section.
Content of the register of agreements
Open ↗(1) The Commission shall maintain a register of all agreements required to be registered under this Act, in accordance with Chapter 6 of this Part.
(2) The register shall contain—
(a) the names of the parties to the agreement;
(b) a general description of the matter pertaining to the agreement; and
(c) the date of the agreement,
but not the terms and conditions of the agreement.
(3) Notwithstanding subsections (1) and (2), a copy of the agreement shall be deposited with the Commission.
Chapter 9 — Voluntary Industry Codes
Industry forum
Open ↗(1) The Commission may designate an industry body to be an industry forum for the purposes of this Act by notifying that body in writing, if the Commission is satisfied that—
(a) the membership of the body is open to all relevant parties;
(b) the body is capable of performing as required under the relevant provisions of this Act; and
(c) the body has a written constitution.
(2) The body shall agree in writing to be an industry forum before the designation may be registered.
(3) The Commission may decide that an existing industry body that was previously designated under subsection (1) to be an industry forum is no longer an industry forum for the purposes of this Act, if the Commission is satisfied that the body no longer meets the requirements set out in subsection (1).
(4) A designation or withdrawal of designation under this section shall take effect from the date of registration, or a later date specified.
Code by the industry forum
Open ↗(1) An industry forum may prepare a voluntary industry code dealing with any matter provided for in this Act—
(a) on its own initiative; or
(b) upon request by the Commission.
(2) The voluntary industry code shall not be effective until it is registered by the Commission.
(3) The Commission may refuse registration of the voluntary industry code, under subsection (1), if the Commission is not satisfied that sufficient opportunity for public consultation has
occurred in the development of the voluntary industry code by the industry forum.
(4) The Commission shall register a voluntary industry code if it is consistent with—
(a) the objects of this Act;
(b) any relevant instrument under this Act; and
(c) any provisions of this Act which are relevant to the particular matter or activity.
(5) The Commission shall either register or refuse registration of a voluntary industry code.
(6) If registration of a voluntary industry code is refused, then the Commission shall notify the relevant industry forum of its decision in writing and provide the reasons for it.
(7) If the Commission neither registers nor refuses to register a voluntary industry code within a period of thirty days from the date that the voluntary industry code was submitted for registration, the Commission is deemed to have refused the registration of the voluntary industry code unless the industry forum receives a written notice of registration of the voluntary industry code after that period.
Commission may determine a voluntary industry code
Open ↗(1) The Commission may determine a voluntary industry code, in accordance with section 55, if—
(a) a voluntary industry code is not developed under an applicable section of this Act; and
(b) the Commission is satisfied that a voluntary industry code is unlikely to be developed by the relevant industry forum within a reasonable time.
(2) The voluntary industry code formulated by the Commission under subsection (1) shall be registered.
(3) The voluntary industry code shall only take effect upon registration.
Applicable voluntary industry code
Open ↗(1) The Commission shall ensure that there is only one voluntary industry code in operation that is applicable to a particular matter for a particular person or class of persons at a given time.
(2) If there is any uncertainty or ambiguity, a person may apply to the Commission for its opinion on which voluntary industry code is the applicable code in relation to the circumstances of the applicant.
(3) The Commission shall provide its opinion within thirty days from the date of receipt of the application.
(4) The Commission shall take into account any relevant Ministerial guidelines and any relevant previous opinions.
(5) The opinion shall be binding on the Commission and the applicant for a period of three years from the date that the opinion is provided under subsection (3).
(6) The Commission shall maintain a register of opinions provided under this section, in accordance with Chapter 6 of this Part.
(7) Notwithstanding subsection (5), the Commission may withdraw an opinion under this section if the Commission is satisfied that the nature of the activity engaged in by the applicant has changed materially.
Compliance with a registered voluntary industry code a legal defence
Open ↗(1) Subject to section 99, compliance with a registered voluntary industry code shall not be mandatory.
(2) Compliance with a registered voluntary industry code shall be a defence against any prosecution, action or proceeding of any nature, whether in a court or otherwise, taken against a person (who is subject to the voluntary industry code) regarding a matter dealt with in that code.
Directions to comply with a registered voluntary industry code
Open ↗The Commission may direct a person or a class of persons, in accordance with section 51, to comply with a registered voluntary industry code.
Civil penalty for non-compliance
Open ↗(1) Notwithstanding section 53, a person who fails to comply with a direction of the Commission that the person complies with any provision of a voluntary industry code shall be liable to pay to the Commission a fine not exceeding two hundred thousand ringgit.
(2) Notwithstanding the provisions of any other written law, the fine payable under this section may, without prejudice to any other remedy or sanction, be recoverable as a civil debt.
Revocation of a code
Open ↗The Commission may determine the revocation of a voluntary industry code, in accordance with section 55, if it is satisfied that the voluntary industry code is no longer consistent with all the matters listed in paragraphs 95(4)(a), (b) and (c).
Submission of new voluntary industry code by an industry forum
Open ↗(1) An industry forum may submit a new voluntary industry code to replace an existing voluntary industry code for that industry.
(2) The submission of the new code shall be subject to the provisions of this Chapter.
(3) If an industry forum submits a new voluntary industry code to the Commission which deals with the same matter as an existing registered code, the existing registered code is taken to be invalid to the extent of any conflict with the new code at the time that the new code is registered under section 95.
Register of current voluntary industry code
Open ↗The Commission shall maintain a register of all current voluntary industry codes, in accordance with Chapter 6 of this Part.
Chapter 10 — Mandatory Standards
Determination of a mandatory standard
Open ↗(1) The Commission may determine a mandatory standard for any matter which may be the subject matter of a voluntary industry code if the Commission is satisfied that the voluntary industry code has failed, and will continue to fail, to promote industry conduct which is consistent with—
(a) the objects of this Act;
(b) any relevant instrument under this Act; or
(c) any relevant provisions of this Act or its subsidiary legislation.
(2) The Commission shall determine a mandatory standard if it is subject to a direction from the Minister to determine a mandatory standard in place of a voluntary industry code.
(3) A Ministerial direction, to determine a mandatory standard, may include reference to—
(a) matters which shall be dealt with in the mandatory standard; and
(b) the manner in which those matters are to be dealt with.
(4) The determination of the Commission under this section shall be in accordance with section 55.
Mandatory standard to be consistent
Open ↗(1) A mandatory standard determined by the Commission under this Chapter shall be consistent with—
(a) the objects of this Act;
(b) any relevant instrument under this Act; or
(c) any relevant provisions of this Act or its subsidiary legislation.
(2) A mandatory standard determined by the Commission under subsection (1) shall specify the class of licensees who are subject to the mandatory standard.
(3) A person subject to a mandatory standard shall comply with the mandatory standard.
Modification, variation or revocation of a mandatory standard
Open ↗(1) The Commission may determine the modification, variation or revocation of a mandatory standard, in accordance with section 55, if it is satisfied that the mandatory standard is no longer consistent with all the matters listed in paragraphs 105(1)(a), (b) and (c).
(2) Any modification or variation of a mandatory standard under subsection (1) shall be deemed to be a new standard for the purposes of this Chapter and shall be subject to the provisions of this Chapter.
(3) If a new mandatory standard deals with the same standard as an existing mandatory standard, then the existing standard is taken to be invalid to the extent of any conflict with the new mandatory standard.
Mandatory standard to take precedence
Open ↗A voluntary industry code, or an undertaking referred to in Chapter 11 of this Part, is invalid to the extent of any conflict with a mandatory standard.
Compliance with a mandatory standard a legal defence
Open ↗Compliance with a mandatory standard shall be a defence against any prosecution, action or proceeding of any nature, whether in a court or otherwise, taken against a person (who is subject to the mandatory standard) regarding a matter dealt with in that mandatory standard.
Civil penalty for non-compliance
Open ↗(1) Notwithstanding section 53, a person who fails to comply with a direction of the Commission that the person complies with any provision of a mandatory standard shall be liable to pay to the Commission a fine not exceeding two hundred thousand ringgit.
(2) Notwithstanding the provisions of any other written law, the fine payable under this section may, without prejudice to any other remedy or sanction, be recoverable as civil debt.
Chapter 11 — Undertakings
Undertaking by a person
Open ↗(1) A person may provide an undertaking to the Commission regarding any matter which may be the subject of a voluntary industry code under this Act or for which this Act makes express provision.
(2) An undertaking provided by a person under subsection (1) may—
(a) set out the terms and conditions for the undertaking; or
(b) adopt the model terms and conditions from a registered voluntary industry code,
and the undertaking may include the effective date of the undertaking and/or the date of its expiry.
Registration of an undertaking
Open ↗(1) An undertaking provided under this Chapter shall only be valid and enforceable upon its registration.
(2) A person may submit a written application to the Commission to have an undertaking registered by the Commission.
(3) The Commission shall register an undertaking if it is satisfied that the undertaking—
(a) is consistent with the objects of this Act;
(b) is consistent with any instrument made under this Act;
(c) is consistent with any relevant provisions in this Act; and
(d) will expire within three years from the date of the application to register the undertaking.
(4) Notwithstanding subsection (3), the Commission shall register an undertaking if the undertaking—
(a) solely adopts model terms and conditions from a registered voluntary industry code; and
(b) will expire within three years from the date of the application to register the undertaking.
(5) The Commission shall either register or refuse to register any other undertaking and shall notify the person providing the undertaking of its decision in writing within thirty days from the date of receipt of the undertaking.
(6) The Commission shall provide reasons for refusing to register an undertaking.
(7) If the Commission neither registers nor refuses to register an undertaking within a period of thirty days from the date of receipt of the application, the Commission is deemed to have refused the registration of the undertaking unless the person providing the undertaking is notified of the registration after that period.
(8) An undertaking provided under this Chapter shall only take effect on the date of registration or on such later date as the undertaking may specify.
Rules regarding undertakings
Open ↗(1) The Minister may make rules, to be published in the Gazette, in respect of undertakings and the rules shall bind the party making the undertakings and all other persons relying on
such undertakings as if they were respectively signed by each person and contained agreements on the part of each person for himself and for his successors to observe all the provisions of the rules.
(2) The Commission may direct a person referred to in subsection
(1) to comply with the rules made under subsection (1) and any registered undertakings issued under this Chapter.
Withdrawal of an undertaking
Open ↗A person providing an undertaking may withdraw the undertaking at any time by notifying the Commission in writing.
Replacement of an undertaking
Open ↗If a person submits to the Commission a new undertaking which deals with the same matter as an existing registered undertaking provided by that person, the existing registered undertaking is taken to be invalid to the extent of any conflict with the new undertaking at the time that the new undertaking is registered under section 111.
Register of undertakings
Open ↗The Commission shall maintain a register of all existing undertakings, in accordance with Chapter 6.
Enforcement of an undertaking
Open ↗(1) Subject to subsection (2), the Commission or a person may apply to a court for the enforcement of a registered undertaking against the person providing the undertaking if an undertaking has not been complied with.
(2) If a sum of money is payable by any person, or where anything, other than the payment of money, is required to be done or not to be done by any person because of any direction given by the Commission under section 112, and the direction has not been complied with by the person to whom it is addressed, then the direction shall, for all purposes, be enforceable as if the
direction is a judgement of the High Court, in accordance with such rules of court as may be applicable or in such manner as the Court may deem just or expedient provided that a certificate has been issued by the Commission to the complainant for leave to proceed to the Court for the enforcement of a registered undertaking except in the case of an injunction.
(3) No certificate is required if an action is taken by the Commission under this section.
Chapter 12 — Regulatory Forbearance
Regulatory forbearance
Open ↗(1) Notwithstanding anything contained in this Act, the Minister may, on the recommendation of the Commission, direct the Commission to forbear from applying any provision of this Act or its subsidiary legislation to a licensee or class of licensees, or to a person or class of persons, if the Minister determines that—
(a) the enforcement of such provision is not necessary to ensure the achievement of the objects of this Act;
(b) the enforcement of such provision is not necessary for the protection of consumers;
(c) the forbearance from applying such provision is consistent with the national interest; and
(d) the forbearance from applying such provision will not impede the administration of this Act.
(2) The direction by the Minister shall be made in accordance with section 7.
Determination by the Minister
Open ↗(1) The Minister shall consider the written recommendation of the Commission before making a determination, in accordance with section 10, to forbear from applying the relevant provisions of this Act or its subsidiary legislation.
(2) The Minister shall provide a written notice as soon as practicable of his determination on whether to forbear from applying such provision and the reasons for his determination.
(3) If the Minister determines to forbear from applying a provision of this Act or its subsidiary legislation, the Minister shall publish the notice of forbearance in the form of an exemption order in the Gazette.
(4) An exemption determined under subsection (3) may or may not be subject to any conditions.
Chapter 13 — Review of Decisions
Review by the Commission
Open ↗(1) A person who is aggrieved or whose interest is adversely affected by any decision of the Commission made pursuant to the performance of its powers and functions under this Act or its subsidiary legislation may request in writing to the Commission for a statement of the reasons for the decision.
(2) The Commission shall, upon such written request, provide a copy of a statement of reasons for the decision and any relevant information taken into account in making the decision within a period of not more than thirty days from the date of receipt of the request by the Commission.
(3) The Commission is not required to publish, or to disclose to a person to whose affairs it relates, a statement of reasons or a part of a statement of reasons if the publication or disclosure would—
(a) disclose a matter of a confidential character;
(b) be likely to prejudice the fair trial of a person; or
(c) involve the unreasonable disclosure of personal information about any individual (including a deceased person).
(4) In this Chapter, “decision” includes any action, order, report or delegated authority.
Review by the Appeal Tribunal
Open ↗(1) Subject to subsection (2), a person who is aggrieved or whose interest is adversely affected by a decision or direction (but not a determination) of the Commission made pursuant to the performance of its powers and functions under this Act or its subsidiary legislation, may appeal to the Appeal Tribunal for a review of the merits and the process of certain decisions or directions of the Commission, unless the matter is not subject to an appeal to the Appeal Tribunal.
(2) Subject to subsection 17(1), the Minister may determine the decisions or directions of the Commission which are not subject to appeal to the Appeal Tribunal under subsection (1).
Judicial review
Open ↗(1) A person affected by a decision or other action of the Minister or Commission may apply to the court for a judicial review of such decision or other action.
(2) A person shall not apply to the court for a judicial review unless that person has first exhausted all other remedies provided under this Act.
Chapter 14 — Regulatory Review
Review of subsidiary legislation by the Commission
Open ↗(1) The Commission shall review all rules and regulations made under this Act that are in effect at the time of the review.
(2) A review of the rules and regulations shall be conducted by the Commission—
(a) every three years; or
(b) as and when the Minister so directs under section 7.
(3) The Commission shall provide a written recommendation to the Minister to modify or vary, or to repeal, any rules or regulations made under this Act—
(a) which are no longer necessary in the national interest;
(b) which are no longer necessary to ensure the objects of this Act; or
(c) for any other reason that the Commission thinks is relevant.
Chapter 15 — Monitoring and Reporting
Report to the Minister on industry performance
Open ↗(1) The Commission shall monitor all significant matters relating to the performance of network facilities providers, network service providers, applications service providers and content applications service providers and report to the Minister at the end of each financial year.
(2) In performing its functions under subsection (1), the Commission shall have regard to such industry performance indicators as the Commission considers appropriate.
Matters to monitor and report
Open ↗Matters upon which the Commission shall monitor and report include, but are not limited to, the following:
(a) the operation and administration of this Act and its subsidiary legislation;
(b) the efficiency in which licensees provide facilities and services;
(c) the quality of services;
(d) the rates paid by consumers for services;
(e) the development of industry self-regulation;
(f) the level of compliance with voluntary industry codes, mandatory standards and undertakings;
(g) the adequacy of services and availability of services in all parts of Malaysia;
(h) any deficiencies in the scope or operation of this Act and its subsidiary legislation; and
(i) other matters that the Commission is satisfied are relevant.
Report to be published
Open ↗The Commission shall publish the report, in the manner it deems appropriate, as soon as practicable following the date on which the Commission conveys the report to the Minister.
Source: Laws of Malaysia, Attorney General's Chambers of Malaysia (lom.agc.gov.my). Not a copy of the Gazette printed by the Government Printer (Interpretation Acts 1948 and 1967, s 61).
