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Issue #10/2017 09 March 2017

New This Week Case(s) of the Week DIRECTOR OF FOREST, SARAWAK & ANOR v. TR SANDAH TABAU & ORS AND OTHER APPEALS [2017] 3 CLJ 1 Latest Cases Legal Network Series CLJ 2017 Volume 3 (Part 1) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

DIRECTOR OF FOREST, SARAWAK & ANOR v.
TR SANDAH TABAU & ORS AND OTHER APPEALS [2017] 3 CLJ 1
FEDERAL COURT, PUTRAJAYA
MD RAUS SHARIF PCA, ABDULL HAMID EMBONG FCJ, AHMAD MAAROP FCJ, ZAINUN ALI FCJ,
ABU SAMAH NORDIN FCJ
[CIVIL APPEALS NO: 01-27-04-2015(Q), 01-30-04-2015(Q) & 01-42-04-2015(Q)]
20 DECEMBER 2016

NATIVE LAW AND CUSTOM: Land dispute - Customary rights over land - Codification of rights - Whether customary rights recognised under written laws by virtue of art. 160 of Federal Constitution - Whether rights protected under native custom - Pre-existence of rights under native laws and customs - Whether claim for native customary rights supported by evidence - Whether rights of natives confined to area where they settled and not where they foraged for food - Iban customs of pemakai menoa and establishments of pulau - Whether enabled natives to claim native customary rights over land - Whether activities on land considered - Superintendent of Lands and Surveys, Bintulu v. Nor Anak Nyawai & Ors And Another Appeal

WORDS & PHRASES: `having the force of law' - Federal Constitution, art. 160(2) - Native customary rights - Claim for - Whether custom or usage fell within definition of law - Whether customary rights recognised under written laws - Whether existing customs have force of law 

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Legal Network Series

[2015] 1 LNS 1079	L & L BROTHER ENGINEERING SERVICES v. TAN CHANG YONG HOLDING SDN BHD	CONTRACT: Claim for work done - Claim for professional consultation fee - Defendant's refusal to pay balance consultation fee to plaintiff - Defendant holding payment subject to documentary evidence of work done by plaintiff - Whether plaintiff performed its obligations pursuant to agreement - Whether project was completed to satisfaction of defendant - Whether defendant's allegations were merely to delay payment CONTRACT: Agreement - Validity - Consultancy services contract - Dispute as to competency of main contractor to provide professional consultancy service for a project - Appointment as main contractor for refurbishment work - Main contractor was to appoint qualified sub-contractors to carry out mechanical and electrical works for project - Allegation that main contractor was unqualified as professional engineer - Whether consultancy services contract entered by an unqualified professional engineer as main contractor was valid and enforceable – Whether Registration of Engineer Act 1967 applicable
[2015] 1 LNS 1082	CHOR TSE MIN v. YOKOMASU MARKETING SDN BHD & ANOR	TORT: Defamation - Libel - Notice published in newspaper - Notice imputed that plaintiff was a person who created problems in a company and had resigned - Intention to injure plaintiff's position as a businessman - Whether notice was defamatory in nature - Whether words complained of had exposed plaintiff to hatred, ridicule or contempt in mind of a reasonable man - Whether publication was malicious and had caused injury to plaintiff's reputation - Whether plaintiff was entitled to damages TORT: Interference - Unlawful interference - Unlawful interference in business - Interference by a director in another director's interest in company - Whether an unlawful act could automatically establish a cause of action - Whether interference was reasonable
[2015] 1 LNS 1083	KHUSHAIRI KARTHI KHAN ABDULLAH v. PP	CRIMINAL LAW: Penal Code - s. 412 - Possession of a stolen motorcar - Motorcar allegedly stolen in a gang robbery by five persons - Whether accused identified as one of the five robbers - Whether accused had possession, custody and control of property through involvement in gang robbery - Whether accused had knowledge or reason to believe motorcar was stolen property - Whether merely driving a stolen motorcar could invoke presumption of knowledge it was a stolen car CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Offence relating to possession of a stolen motorcar - Evidential burden of knowledge placed on accused - Absence of direct evidence to show accused had prerequisite knowledge that motorcar was stolen - Whether trial judge had drawn unfavourable inferences on accused - Whether there was a misdirection on part of trial judge which warranted appellate intervention CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Possession of dangerous drugs under s. 12 of Dangerous Drugs Act 1952 ('DDA') - Drugs found underneath driver's seat - Trial judge invoked presumption under s. 37(h) of DDA - Whether trial judge's presumption on knowledge of possession of drugs by relying on s. 37(h) of DDA was a misdirection which warranted appellate intervention CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Offence relating to possession of pistol and live bullets without valid licence under s. 8 of Firearms (Increased Penalties) Act - Pistol and bullets were found underneath car seat - Whether trial judge was right in finding that the pistol and live bullets belonged to the accused merely on fact that accused was driving the said motorcar at time of his arrest EVIDENCE: Admissibility of evidence - Conduct - Admissibility of evidence of conduct to show knowledge - Conduct of accused at time of arrest - Accused did not evade arrest - Whether conduct admissible as evidence - Evidence Act 1950, s. 8
[2015] 1 LNS 1355	PP lwn. MOHD MARZUKI ABDULLAH	UNDANG-UNDANG JENAYAH: Bunuh - Seksyen 302 Kanun Keseksaan - Identiti penyerang dipertikaikan - Kewujudan kehadiran individu lain yang tidak diketahui berdasarkan profil DNA - Sama ada elemen-elemen pertuduhan telah dibuktikan PROSEDUR JENAYAH: Pendakwaan - Kes pendakwaan - Pembuktian kes prima facie - Pertuduhan bunuh - Penyandaran pihak pendakwaan kepada keterangan ikut keadaan - Percanggahan material dalam keterangan saksi-saksi pendakwaan - Kewujudan kehadiran individu lain yang tidak diketahui berdasarkan profil DNA terhadap barang kes - Profil DNA pada pakaian si mati tidak diambil - Kegagalan menyiasat kehadiran beberapa barang di tempat kejadian - Sama ada keterangan saksi-saksi pendakwaan membantu mahkamah - Sama ada keterangan ikut keadaan yang dikemukakan oleh pihak pendakwaan adalah mencukupi untuk merumuskan tertuduh adalah orang yang telah melakukan pembunuhan ke atas si mati - Sama ada pihak pendakwaan telah mengemukakan kes prima facie terhadap tertuduh
[2015] 1 LNS 1360	PP lwn. LES MARY & SATU LAGI	PROSEDUR JENAYAH: Hukuman - Mitigasi - Tempoh pemenjaraan - Kesalahan dibawah s. 363 Kanun Keseksaan - Bayi telah ditahan secara salah oleh orang gaji - Orang gaji mendesak ingin balik ke negara asal dan bayi majikan telah ditahan secara salah sebagai jaminan - Pengakuan bersalah setelah pertuduhan dibacakan - Kesalahan pertama - Sama ada kesalahan yang telah dilakukan oleh tertuduh adalah serius - Sama ada faktor pengakuan salah mewajarkan tempoh pemenjaraan yang singkat - Sama ada faktor pesalah pertama dan mempunyai rekod yang bersih mewajarkan hukuman penjara yang singkat

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CLJ 2017 Volume 3 (Part 1)

FEDERAL COURT

Director Of Forest, Sarawak & Anor v. TR Sandah Tabau & Ors And Other Appeals
Md Raus Sharif PCA, Abdull Hamid Embong, Ahmad Maarop, Zainun Ali, Abu Samah Nordin FCJJ
(Native Law And Custom; Words & Phrases - Land dispute - Pre-existence of rights under native laws and customs - Whether rights of natives confined to area where they settled and not where they foraged for food - Iban customs of pemakai menoa and establishments of pulau - Federal Constitution, art. 160(2)) [2017] 3 CLJ 1 [FC]

COURT OF APPEAL

Haris Fatillah Mohd Ibrahim v. Suruhanjaya Pilihan Raya Malaysia
Tengku Maimun Tuan Mat, Ahmadi Asnawi, Zamani A Rahim JJCA
(Constitutional Law; Election - Delimitation exercise - Application for relevant information to make informed representation - Failure to supply relevant information - Application for declaratory reliefs via originating summons - Locus standi) [2017] 3 CLJ 88 [CA]

Hock Seng Lee Timber Sdn Bhd v. Yii Chi Hau & Anor
Tengku Maimun Tuan Mat, Badariah Sahamid, Kamardin Hashim JJCA
(Company Law; Civil Procedure - Winding up - Affidavit to oppose petition - Whether rr. 193 & 194 of Rules read together with s. 221(2) of Companies Act 1965 gives power to court to exercise discretion to abridge time - Application for extension of time - Principle of stare decisis) [2017] 3 CLJ 104 [CA]

HIGH COURT

Bank Pembangunan Malaysia Bhd v. Seroja Engineering Sdn Bhd; Tai Ma Heavy Machinery (M) Sdn Bhd (Petitioner)
Noorin Badaruddin JC
(Bankruptcy; Civil Procedure - Proof of debt - Part of proof of debt issued by creditor rejected by debtor's liquidator - Whether limitation of rate by debtor's liquidator justified) [2017] 3 CLJ 120 [HC]

SUBJECT INDEX

BANKRUPTCY

Proof and priority of debts - Proof of debt - Part of proof of debt issued by creditor rejected by debtor's liquidator - Debtor's liquidator limited interest rate to 6% per annum instead of 10% per annum - Principle of merger - Whether limitation of rate by debtor's liquidator with sound basis - Whether interest rate affected by amendment to s. 43(6) of Bankruptcy Act 1967 - Companies (Winding- Up) Rules 1972, r. 92
Bank Pembangunan Malaysia Bhd v. Seroja Engineering Sdn Bhd; Tai Ma Heavy Machinery (M) Sdn Bhd (Petitioner)
(Noorin Badaruddin JC) [2017] 3 CLJ 120 [HC]

CIVIL PROCEDURE

Extension of time - Application for - Filing of affidavit to oppose winding up petition - Whether filed out of time - Whether there was non-compliance of r. 30(1) of Companies (Winding-Up) Rules 1972 - Whether non-compliance caused substantial injustice - Whether rr. 193 & 194 of Rules read together with s. 221(2) of Companies Act 1965 gives power to court to exercise discretion to abridge time - Whether company should be given right to be heard - Whether extension of time ought to be granted - Whether winding up petition ought to be heard on merit - Companies Act 1965, s. 355(1)
Hock Seng Lee Timber Sdn Bhd v. Yii Chi Hau & Anor
(Tengku Maimun Tuan Mat, Badariah Sahamid, Kamardin Hashim JJCA) [2017] 3 CLJ 104 [CA]

Judgments and orders - Judgment in default - Banking facilities - Claim by bank against wound up company - Part of proof of debt issued by creditor rejected by debtor's liquidator - Debtor's liquidator limited interest rate to 6% per annum instead of 10% per annum - Whether limitation of rate by debtor's liquidator justified
Bank Pembangunan Malaysia Bhd v. Seroja Engineering Sdn Bhd; Tai Ma Heavy Machinery (M) Sdn Bhd (Petitioner)
(Noorin Badaruddin JC) [2017] 3 CLJ 120 [HC]

COMPANY LAW

Winding up - Petition - Affidavit to oppose petition - Whether filed out of time - Whether there was non-compliance of r. 30(1) of Companies (Winding-Up) Rules 1972 - Whether rr. 193 & 194 of Rules read together with s. 221(2) of Companies Act 1965 gives power to court to exercise discretion to abridge time - Application for extension of time - Whether company should be given right to be heard - Principle of stare decisis - Whether applicable - Failure to consider company's oral application - Whether caused prejudice and injustice - Whether appellate intervention warranted - Whether extension of time ought to be granted - Whether winding up petition ought to be heard on merit - Companies Act 1965, s. 355(1)
Hock Seng Lee Timber Sdn Bhd v. Yii Chi Hau & Anor
(Tengku Maimun Tuan Mat, Badariah Sahamid, Kamardin Hashim JJCA) [2017] 3 CLJ 104 [CA]

CONSTITUTIONAL LAW

Election - Delimitation exercise - Application for relevant information by appellant to make informed representation - Failure of respondent to supply relevant information - Application for declaratory reliefs via originating summons ('OS') - Whether appellant had right to information relating to changes made to Parliamentary and State Constituencies - Whether reliefs sought outside scope and functions of respondent - Whether court had jurisdiction to grant reliefs sought - Whether appellant had requisite locus standi to initiate proceedings - Whether OS premature and abuse of court process - Federal Constitution, art. 113
Haris Fatillah Mohd Ibrahim v. Suruhanjaya Pilihan Raya Malaysia
(Tengku Maimun Tuan Mat, Ahmadi Asnawi, Zamani A Rahim JJCA) [2017] 3 CLJ 88 [CA]

ELECTION

Election Commission - Delimitation exercise - Application for relevant information by appellant to make informed representation - Failure of respondent to supply relevant information - Application for declaratory reliefs via originating summons ('OS') - Whether appellant had right to information relating to changes made to Parliamentary and State Constituencies - Whether reliefs sought outside scope and functions of respondent - Whether court had jurisdiction to grant reliefs sought - Whether appellant had requisite locus standi to initiate proceedings - Whether OS premature and abuse of court process - Federal Constitution, art. 113
Haris Fatillah Mohd Ibrahim v. Suruhanjaya Pilihan Raya Malaysia
(Tengku Maimun Tuan Mat, Ahmadi Asnawi, Zamani A Rahim JJCA) [2017] 3 CLJ 88 [CA]

NATIVE LAW AND CUSTOM

Land dispute - Customary rights over land - Codification of rights - Whether customary rights recognised under written laws by virtue of art. 160 of Federal Constitution - Whether rights protected under native custom - Pre-existence of rights under native laws and customs - Whether claim for native customary rights supported by evidence - Whether rights of natives confined to area where they settled and not where they foraged for food - Iban customs of pemakai menoa and establishments of pulau - Whether enabled natives to claim native customary rights over land - Whether activities on land considered - Superintendent of Lands and Surveys, Bintulu v. Nor Anak Nyawai & Ors And Another Appeal
Director Of Forest, Sarawak & Anor v. TR Sandah Tabau & Ors And Other Appeals
(Md Raus Sharif PCA, Abdull Hamid Embong, Ahmad Maarop, Zainun Ali, Abu Samah Nordin FCJJ) [2017] 3 CLJ 1 [FC]

WORDS & PHRASES

'having the force of law' - Federal Constitution, art. 160(2) - Native customary rights - Claim for - Whether custom or usage fell within definition of law - Whether customary rights recognised under written laws - Whether existing customs have force of law
Director Of Forest, Sarawak & Anor v. TR Sandah Tabau & Ors And Other Appeals
(Md Raus Sharif PCA, Abdull Hamid Embong, Ahmad Maarop, Zainun Ali, Abu Samah Nordin FCJJ) [2017] 3 CLJ 1 [FC]

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LNS Article(s)

1. NOMINEE DIRECTORS' DILEMMA:TO WHOM DO THEY OWE LOYALTIES TO? A CASE OF COMPETING ALLEGIANCES* ^{[Read excerpt]}
   LAI ZHEN PIK [2017] 1 LNS(A) xiv

[2017] 1 LNS(A) xiv



MALAYSIA

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NOMINEE DIRECTORS' DILEMMA:
TO WHOM DO THEY OWE LOYALTIES TO? A CASE OF COMPETING ALLEGIANCES*

LAI ZHEN PIK

IN THIS ARTICLE, LAI ZHEN PIK EXAMINES THE DILEMMA NOMINEE DIRECTORS FACE WHEN THERE IS A CONFLICT OF INTEREST.

Introduction

It is trite law that the business and affairs of a company must be managed by, or under the direction of, the board of directors.^[1] Directors of a company hold fiduciary offices and are under a duty to exercise their discretions for a proper purpose, in good faith and at all times to act in the best interests of the company as a whole.^[2]

Nominee directors

Directors are expected to discharge their duties with utmost loyalty to the company on whose board they serve. However, such expectation is difficult to manage in the context of nominee directors who are appointed by stakeholders, such as shareholders, creditors or other interested parties, to protect their interests in a company (referred to as the “nominating parties”).

The appointment of nominee directors is especially common in joint venture arrangements where different companies come together to leverage each other’s expertise by incorporating a joint venture company under which business is carried out. More often than not, joint venture agreements entered into between parties would specify the agreed shareholding proportion and the number of nominee directors each party is entitled to appoint.

These nominee directors are often members of senior management of the nominating parties and their main purpose of appointment onto the board of the company is to be the eyes, ears and mouthpieces of the nominating parties.

. . .

* Published with kind permission of M/s Shearn Delamore & Co.

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2. FILM PRACTITIONERS' CONTEMPORARY DEBATE ON FREEDOM OF SPEECH AND FILM CENSORSHIP LAWS OF BANGLADESH ^{[Read excerpt]}
   MD. ZAHIDUL ISLAM* [2017] 1 LNS(A) xxi

[2017] 1 LNS(A) xxi



BANGLADESH

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FILM PRACTITIONERS' CONTEMPORARY DEBATE ON FREEDOM OF SPEECH AND FILM CENSORSHIP LAWS OF BANGLADESH

MD. ZAHIDUL ISLAM*

Abstract

Freedom of speech is a vital element to humanity and for the foundation of a free society. The making and exhibition of films also falls under the free speech clause. Like other fundamental liberties, freedom of speech does not have any absolute form and it is related to the reputation of others like national security issues, public mental health and moral instincts. It is a contemporary debate that freedom of speech is violated by the censorship law. The aim of this paper is to identify the relationship between freedom of speech and censorship laws of Bangladesh. It is a qualitative research approach. The information has been collected studying articles, books, newspapers and statutes. The restrictions on freedom of speech are acceptable for the interest of security of a state, public order and to establish friendly relationship with other foreign countries. In this case, censorship plays an important role to protect moral values and maintain law and order in a country.

Keywords: Film Practitioner, Freedom of Speech, Film censorship, Law, Bangladesh.

INTRODUCTION

Freedom of speech is the freedom to speak freely without any censorship or limitation. Freedom of speech is a constitutional right as well as a fundamental right of citizens. It is fundamental to the existence of democracy and the respect of human dignity. Although it is a constitutional right, it is not absolute in terms of national and international laws from the beginning. The aristocratic rulers allowed certain classes of citizens to express their opinions without fear but freedom of speech and expression was not absolute. It was reserved for adult male citizens, not for juveniles, women and resident aliens (Tedford, 2001).

. . .

* Lecturer, Kulliyah of Shari’ah and Law (KSL), Islamic University Maldives (IUM); PhD researcher, Ahmed Ibrahim Kulliyyah of Laws (AIKOL), International Islamic University Malaysia (IIUM). Email: zahidul.islam@ium.edu.my

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Principal Acts

Number	Title	In force from	Repealing
ACT 788	Civil Aviation Authority of Malaysia Act 2017	Not Yet In Force	-
ACT 787	Offences Relating To Awards Act 2017	Not Yet In Force	-
ACT 786	Asian Infrastructure Investment Bank Act 2017	This Act comes into operation on the date the Agreement comes into operation for the Government of Malaysia pursuant to Article 58 of the Agreement	-
ACT 785	Finance Act 2017	The Income Tax Act 1967 [Act 53] see s 3; The Petroleum (Income Tax) Act 1967 [Act 543] see s 30; The Real Property Gains Tax Act 1976 [Act 169] see s 34; The Labuan Business Activity Tax Act 1990 [Act 445] see s 37; The Goods and Services Tax Act 2014 [Act 762] see s 40	-
ACT 784	Scouts Association of Malaysia (Incorporation) Act 1968 (Revised 2016)	17 November 2016 pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 1 November 2016; First enacted in 1968 as Act of Parliament No 38 of 1968; First Revision - 1989 (Act 409 wef 14 December 1989)	-

Amending Acts

Number	Title	In force from	Principal/Amending Act No
ACT A1527	Evidence (Amendment) Act 2017	1 March 2017	ACT 56
ACT A1526	Civil Aviation (Amendment) Act 2017	Not Yet In Force	ACT 3
ACT A1525	Emblems and Names (Prevention of Improper Use) (Amendment) Act 2017	Not Yet In Force	ACT 414
ACT A1524	Births and Deaths Registration (Amendment) Act 2017	Not Yet In Force	ACT 299
ACT A1523	Administration of Islamic Law (Federal Territories) (Amendment) Act 2017	1 February 2017 [PU(B) 67/2017]	ACT 505

PU(A)

Number	Title	Date of Publication	In force from	Principal/ Amending Act No
PU(A) 70/2017	Speed Limit (Kuchai Link Ramp) Order 2017	7 March 2017	8 March 2017	ACT 333
PU(A) 69/2017	Pembangunan Sumber Manusia Berhad (Amendment of First Schedule) Order 2017	7 March 2017	1 April 2017	ACT 612
PU(A) 68/2017	Wildlife Conservation (Exemption) Order 2017	7 March 2017	8 March 2017	ACT 716
PU(A) 67/2017	Solicitors' Remuneration (Amendment) Order 2017	2 March 2017	15 March 2017	PU(A) 520/2005
PU(A) 66/2017	Anti-Trafficking In Persons and Anti-Smuggling of Migrants (Payment of Allowance To Trafficked Persons) Regulations 2017	1 March 2017	1 March 2017	ACT 670

PU(B)

Number	Title	Date of Publication	In force from	Principal/ Amending Act No
PU(B) 126/2017	Declaration of The New Pantai Highway As A Designated Federal Territory Road	7 March 2017	8 March 2017	ACT 333
PU(B) 125/2017	Appointment and Revocation of Appointment of Members of The National Wages Consultative Council	2 March 2017	3 March 2017	ACT 732
PU(B) 124/2017	Appointment of Deputy Collector of Stamp Duties	28 February 2017	Specified in column (3) of the Schedule	ACT 378
PU(B) 123/2017	Appointment of Deputy Collector of Stamp Duties	28 February 2017	Specified in column (3) of the Schedule	ACT 378
PU(B) 122/2017	Appointment of Date of Coming Into Operation	28 February 2017	1 March 2017	ACT A1521

Legislation Alert

Updated

Act/Principal No.	Title	Amended by	In force from	Section amended
ACT 612	Pembangunan Sumber Manusia Berhad Act 2001	PU(A) 69/2017	1 April 2017	First Schedule
PU(A) 520/2005	Solicitors' Remuneration Order 2005	PU(A) 67/2017	15 March 2017	Paragraph 6; First Schedule and Third Schedule
PU(A) 37/2017	Companies Regulations 2017	PU(A) 62/2017	1 March 2017	Schedule
ACT 593	Criminal Procedure Code (Revised 1999)	ACT A1521	1 March 2017 except sections 17, 18 and 19 [PU(B) 122/2017]	Sections 2, 13, 98, 117, 173A, 265A, 265B, 265C, 294, 399B, 402B, 407B, 414, 415, 425A, 430 and First Schedule
ORD 70/1952	Merchant Shipping Ordinance 1952	ACT A1519	1 March 2017 [PU(B) 111/2017]	Section 2, 404A and Third Schedule

Revoked

Act/Principal No.	Title	Revoked by	In force from
PU(B) 227/2004	Declaration of the New Pantai Highway As A Designated Federal Territory Road	PU(B) 126/2017	8 March 2017
PU(A) 322/2013	Price Control and Anti-Profiteering (Determination of Maximum Price) (No. 7) Order 2013	PU(A) 61/2017	1 March 2017
PU(B) 27/2015	Appointment and Revocation of Appointment of Registrar of Credit Reporting Agencies	PU(B) 463/2016	16 March 2016
PU(A) 61/2010	Federal Roads (Private Management) (Collection of Tolls) (Kajang-Seremban Highway) Order 2010	PU(A) 264/2016	19 October 2016
PU(A) 79/2002	Communications and Multimedia (Rates) Rules 2002	PU(A) 185/2016	1 July 2016