Tourism Board Act 2012 (No. 24 of 2012)

FA E R N AT F TQUO U BERMUDA TOURISM BOARD ACT 2012 2012 : 24 TABLE OF CONTENTS PART 1 PRELIMINARY Citation Interpretation PART 2 ESTABLISHMENT, INCORPORATION AND COMPOSITION OF BOARD Establishment of Board Chairman of Board Composition of Board Tenure of office of member PART 3 FUNCTIONS AND POWERS OF BOARD Functions of Board Powers of Board Directions by Minister Chief Executive Staff of Board Ineligibility for employment as officers or employees Appointment of committees and delegation of powers Immunity from suit PART 4 FINANCIAL PROVISIONS Funds of Board Tourism guest fee 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 1 TOURISM BOARD ACT 2012 Financial year Accounts of Board Annual report Publication of annual report and accounts Regulations Commencement SCHEDULE WHEREAS it is expedient to establish a Tourism Board for the purpose of developing and promoting Bermuda as a tourist destination; Be it enacted by The Queen’s Most Excellent Majesty, by and with the advice and consent of the Senate and the House of Assembly of Bermuda, and by the authority of the same, as follows: PART 1 PRELIMINARY Citation This Act may be cited as the Tourism Board Act 2012. Interpretation In this Act— “Board” means the Tourism Board established under section 3; “Chairman” means the Chairman of the Board appointed under section 4; “Chief Executive” means the Chief Executive of the Board appointed under section 10; “committee” means a committee appointed by the Board under section 13; “Deputy Chairman” means the Deputy Chairman appointed by the Minister under section 5(3); “financial year” means a period of 12 months beginning on 1 April; “member” means a member of the Board appointed under section 5; “Minister” means the Minister responsible for tourism. 17 18 19 20 21 22 1 2 2 TOURISM BOARD ACT 2012 PART 2 ESTABLISHMENT, INCORPORATION AND COMPOSITION OF BOARD Establishment of Board There is established for the purposes of this Act a body corporate to be known as the Tourism Board. The Board has perpetual succession and a common seal with power, subject to the provisions of the Act— to acquire and dispose of property, both moveable and immovable; to sue and be sued in its corporate name; and to perform such other acts as bodies corporate may by law perform. Chairman of Board The Minister shall appoint a Chairman of the Board who shall be a person with suitable qualifications and experience in the tourism industry. Composition of Board The Board shall consist of— the Chairman; eight members appointed by the Minister; five members appointed by the Bermuda Hotel Association with the approval of the Minister; the Executive Officer of the Chamber of Commerce; and the President of the Bermuda Industrial Union. The following persons shall be ex-officio members of the Board— the Director of Tourism; the Director of Global Operations; the Airport General Manager; and the Chief Executive Officer of the Bermuda Hotel Association. The Minister shall appoint a Deputy Chairman from among the members of the Board listed under subsection (1)(b) to (e). If the Chairman and Deputy Chairman are absent or unable to act, the Minister may appoint any member of the Board to act temporarily as Chairman. An ex-officio member of the Board under subsection (2) may attend meetings of the Board and may assist the Board in its deliberation on any matter, but shall not be counted for the purpose of constituting a quorum and shall have no vote. 3 (1) (2) (a) (b) (c) 4 5 (1) (a) (b) (c) (d) (e) (2) (a) (b) (c) (d) (3) (4) (5) 3 TOURISM BOARD ACT 2012 The Chairman and members of the Board shall be paid such fees and allowances as the Minister may determine. The Schedule shall have effect as to terms of appointment, meetings and procedures of the Board. Tenure of office of member A member of the Board shall, subject to the provisions of this Act, hold office for a period not exceeding three years, but such member shall be eligible for reappointment. PART 3 FUNCTIONS AND POWERS OF BOARD Functions of Board The functions of the Board shall be— to develop and promote Bermuda as a tourist destination; to advise the Government on matters relating to travel and tourism; to enhance the travel and tourism sector’s contribution to the Bermuda economy; to act as an agent for the Government or, with the approval of the Minister, for any person, body or organisation for the transaction of any business connected with any tourism enterprise; to engage in, assist in or promote the improvement of facilities for visitors to Bermuda and the development of Bermuda as a tourist destination; to secure overseas publicity for the tourist attractions in Bermuda and tourism projects outside Bermuda in which Bermuda has an interest; to co-ordinate the activities of persons providing services for visitors to Bermuda; and generally to do all such acts, matters and things as are necessary to be carried out for the purposes of this Act. In addition to the functions mentioned in subsection (1) the Minister may require the Board to undertake other functions related to the functions set out under subsection (1). The Minister may require the Board generally to carry out any of the functions provided for in subsection (1) or may in a particular case require the Board to carry out any such function. Subject to this Act and the approval of the Minister, the Board may carry on such activities as appear to the Board to be advantageous, necessary or convenient for it to carry on for or in connection with the discharge of its functions and duties under this Act. (6) (7) 6 7 (1) (a) (b) (c) (d) (e) (f) (g) (h) (2) (3) (4) 4 TOURISM BOARD ACT 2012 Powers of Board Subject to the other provisions of this Act, the Board shall have power to do anything for the purpose of discharging its functions under this Act or any other written law, or which is incidental or conducive to the discharge of those functions. Without prejudice to the generality of subsection (1) but subject to this Act, the powers of the Board shall include the power— with the approval of the Minister, to acquire, take on lease, hire, hold and enjoy movable and immovable property and to convey, assign, surrender, charge, mortgage, demise, transfer or otherwise dispose of, or deal with, any movable or immovable property belonging to the Board upon such terms as the Board considers fit; to grant loans or advances to any person carrying on a tourism enterprise; to enter into any contract or agreement for carrying out the purposes of this Act; to receive such fee, payment or commission as may be agreed upon, in consideration of the services rendered by the Board; to require such fee or payment with respect to any matter relating to tourism or tourism enterprises to be remitted to the Board as the Minister may prescribe; with the approval of the Minister, to subscribe for or acquire any stock, share, bond, debenture or other financial instrument in any company carrying on a tourism enterprise; with the approval of the Minister, to invest any money of the Board in any business within or outside Bermuda which will promote or be conducive to the tourism trade in Bermuda; with the approval of the Minister— to enter into any joint venture with any person; or to form or participate in the formation of any company, whether in Bermuda or elsewhere, for the purpose of carrying out all or any of the functions of the Board; with the approval of the Minister, to manage, control or supervise tourism enterprises within or outside Bermuda by appointing advisers, or by collaborating with persons carrying on tourism enterprises or entering into partnerships or any other arrangements with them; with the approval of the Minister and the Minister of Finance, to borrow money whether by way of bank overdraft or otherwise for such purposes of the Board as the Board may from time to time consider desirable; and 8 (1) (2) (a) (b) (c) (d) (e) (f) (g) (h) (i) (ii) (i) (j) 5 TOURISM BOARD ACT 2012 generally to do all such matters and things as may be incidental to or consequential upon the exercise of the Board’s powers or the discharge of its duties under this Act. Directions by Minister The Minister may, after consultation with the Board, give to the Board such directions, not inconsistent with the provisions of this Act, as he may think fit, as to the exercise and performance by the Board of its functions, duties and powers under this Act, and the Board shall give effect to all such directions. The Board shall furnish the Minister with such information with respect to its property and activities as the Minister may from time to time require. Chief Executive The Board may, with the approval of the Minister, appoint a Chief Executive for the purposes of this Act. The Chief Executive shall— be known by such designation as the Board may determine; be responsible to the Board for the proper administration and management of the functions and affairs of the Board in accordance with the policy laid down by the Board; and not be removed from office without the consent of the Minister. Staff of Board The Board may from time to time appoint such agents and appoint such officers and employees as may be necessary for the purposes of this Act. All officers and employees of the Board shall be under the administrative control of the Board. Ineligibility for employment as officers or employees No person shall be eligible for employment as an officer or employee of the Board who has, directly or indirectly, by himself or with his partner, entered into any contract with, for or on behalf of the Board. Any officer or employee of the Board who has entered into or acquires any such contract shall be liable, in the discretion of the Board, to summary dismissal without notice. Appointment of committees and delegation of powers The Board may, in its discretion, appoint from among its own members or from among other persons such number of committees as it thinks fit for purposes which, in the opinion of the Board, would be more expediently carried out or managed by such committees. (k) 9 (1) (2) 10 (1) (2) (a) (b) (c) 11 (1) (2) 12 (1) (2) 13 (1) 6 TOURISM BOARD ACT 2012 The Board may, subject to such conditions or restrictions as it thinks fit, delegate to— the Chairman; any of its members; the Chief Executive; any committee appointed under subsection (1); any officer or employee, any of the functions or powers of the Board under this Act, except the power of delegation conferred by this section. Any power, function or duty delegated as provided in subsection (2) shall be exercised or performed by the person to whom delegated in the name and on behalf of the Board. The Board may continue to exercise a power upon it, or perform a function or duty under this Act or any other written law, notwithstanding the delegation of such power, function or duty under this section. Immunity from suit No action, suit, prosecution or other proceeding shall be brought or instituted personally against an officer, employee or agent of the Board, or any member of the Board, or the Minister, in respect of any act done bona fide in pursuance or execution or intended execution of their functions under this Act or any other Act and regulations made thereunder. Where any member of the Board is exempt from liability by reason only of subsection (1), the Board shall be liable to the extent that it would be if that member were an employee or agent of the Board. PART 4 FINANCIAL PROVISIONS Funds of Board The funds of the Board shall consist of— all such sums as may be appropriated by the Legislature for the purposes of the Board; all moneys, dividends, royalties, interest or income received from any source or transaction made pursuant to the powers conferred on the Board under this Act; all moneys borrowed by the Board for the purposes of this Act; (2) (a) (b) (c) (d) (e) (3) (4) 14 (1) (2) 15 (a) (b) (c) 7 TOURISM BOARD ACT 2012 all moneys received by the Board by way of fees, payments or commissions— relating to tourism guest fee payable under section 16; for any matter relating to tourism and tourism enterprises; and for services rendered by the Board to any person; and all grants, subsidies and contributions paid to the Board or received from any source and funds raised by all lawful means. Tourism guest fee In addition to the occupancy tax payable under section 29 of the Miscellaneous Taxes Act 1976 and any other fees authorized by law, there is imposed and shall be paid by each proprietor of a hotel in respect of each guest accommodated in the hotel the tourism guest fee at the rate of 2.5% of the rack rate charge made by such hotel in respect of such guest. The term “rack rate charge” has the meaning ascribed to it in section 29(2) of the Miscellaneous Taxes Act 1976. The Minister may in the regulations made under this Act, from time to time, determine the percentage rate of the rack rate charge applicable to the tourism guest fee with respect to— different categories of hotels and other accommodations for guests; and different times and seasons of the year. The statement to be delivered under section 30 of the Miscellaneous Taxes Act 1976 by every proprietor of a hotel on the departure of the person who had been accommodated at the hotel shall include a separate entry for the amount of the tourism guest fee payable. The tourism guest fee shall be due and payable at such time as the hotel occupancy tax is payable and shall be collected by such office of the Board as the Minister may in writing determine. Any proprietor who fails to comply with the requirements of this section shall be guilty of an offence and liable on conviction by a court of summary jurisdiction to a fine not exceeding $10,000. Regulations made by the Minister under subsection (3) shall be subject to the affirmative resolution procedure. Financial year The financial year of the Board shall end on 31 March in each year. (d) (i) (ii) (iii) (e) 16 (1) (2) (3) (a) (b) (4) (5) (6) (7) 17 8 TOURISM BOARD ACT 2012 Accounts of Board The Board shall cause proper statements of its financial affairs to be maintained and shall prepare in respect of each financial year a statement of its accounts in such form as required by applicable accounting standards. The accounts of the Board shall be audited by the Auditor-General or by an auditor appointed annually by the Auditor-General. A person shall not be qualified for appointment as an auditor under subsection (2) unless he is a public accountant who is registered or deemed to be registered under the Institute of Chartered Accountants of Bermuda Act 1973. The statement of accounts must present fairly and accurately— the financial transactions of the Board during the financial year to which they relate; and the financial position of the Board at the end of the financial year. The auditor shall state in his report whether— proper accounting and other records have been kept; and the receipt, expenditure and investment of moneys and the acquisition and disposal of assets by the Board during the year have been in accordance with the provisions of this Act. The auditor may at any other time report to the Minister through the Board upon any matter arising out of the performance of his audit. Where the Auditor-General has not been appointed to be the auditor, a copy of the audited financial statements and any report made by the auditor shall be forwarded to the Auditor-General at the same time they are submitted to the Board. As soon as the accounts of the Board and the financial statements have been audited in accordance with the provisions of this Act, a copy of the audited financial statements signed by the Chairman, together with a copy of any report made by the auditor, shall be submitted to the Minister. Annual report The Board shall, as soon as practicable after the close of each financial year but not later than 30 September of each year, submit to the Minister an annual report on the activities of the Board during the preceding financial year. Publication of annual report and accounts The Board shall, as soon as practicable after the end of each financial year, cause to be made and transmitted to the Minister— a copy of the annual report of the operations of the Board during that year; and 18 (1) (2) (3) (4) (a) (b) (5) (a) (b) (6) (7) (8) 19 20 (1) (a) 9 TOURISM BOARD ACT 2012 a copy of the audited annual statement of accounts of the Board certified by the Auditor-General. The Minister shall as soon as practicable after receipt of the annual report and annual statement of accounts cause a copy of each to be laid before both Houses of the Legislature. Regulations The Minister may make regulations for the purposes of this Act prescribing anything that is necessary or convenient to be prescribed for the carrying out of the provisions of this Act or to give effect to it. Without derogating from the generality of subsection (1), regulations may provide for— the tourism guest fee or other payment with respect to any matter relating to tourism or tourism enterprises to be remitted to the Board at such rate and times as may be prescribed; the procedures and processes required for the carrying out of any of the functions or powers of the Board; the contravention of regulations to be an offence and to impose penalties— not exceeding a fine of $1,000 or imprisonment for six months, or both; and in the case of a continuing offence, to a further fine not exceeding $250 for every day or part thereof during which the offence continues after conviction. Regulations made by the Minister under this Act shall be subject to the negative resolution procedure. Commencement The provisions of this Act shall come into operation on such date as the Minister may appoint by notice published in the Gazette, and the Minister may appoint different days for the coming into operation of different provisions. (b) (2) 21 (1) (2) (a) (b) (c) (i) (ii) (3) 22 10 TOURISM BOARD ACT 2012 SCHEDULE (section 5) PART 1 RESIGNATION AND REMOVAL FROM OFFICE Resignation Any member of the Board, other than the Chairman, may at any time resign his office by instrument in writing addressed to the Minister and transmitted through the Chairman, and from the date of the receipt by the Minister of such instrument, such member shall cease to be a member of the Board. The Chairman may at any time resign his office by instrument in writing addressed to the Minister and such resignation shall take effect as from the date of the receipt of such instrument by the Minister. Removal from office and disqualification for appointment The Minister, acting after consultation with the Board, may remove a person from office as Chairman or member of the Board— if he is satisfied that such person— has without reasonable excuse been absent from three consecutive meetings of the Board; has been convicted (whether before or after his appointment) of a criminal offence; is an undischarged bankrupt or his estate has been sequestrated and he has not been discharged; has made a composition or arrangement with, or granted a trust deed for, his creditors; or is otherwise unable or unfit to carry out his functions as Chairman or member; or by giving such person notice of termination of appointment. The fact that a person has held office as a member of the Board does not disqualify him for reappointment to that office. The Minister shall cause to be published in the Gazette the name of every person appointed as a member of the Board. 1 (1) (2) 2 (a) (i) (ii) (iii) (iv) (v) (b) 3 4 11 TOURISM BOARD ACT 2012 PART 2 PROCEDURE FOR MEETINGS OF THE BOARD Powers The Board may act notwithstanding the existence of one or more vacancies in its members or a defect in the appointment of a member. Meetings The Board shall meet as often as necessary or expedient for the due performance of its functions. The Chairman may summon a meeting at any time on giving such notice as, in his judgment, the circumstances may require. At a meeting of the Board, the proceedings shall be regulated as follows— seven members of the Board constitute a quorum; the Chairman shall preside at meetings of the Board; if the Chairman is absent from a meeting of the Board, the Deputy Chairman shall act as Chairman and preside at the meeting; if a member of the Board has any direct interest in any dealing or business with the Board— he shall disclose his interest to the Board at the time of the dealing or business being negotiated or transacted; and he shall have no vote in relation to the dealing or business, unless the Board has resolved that the interest does not give rise to a conflict of interest; subject to subparagraph (d)(ii), a member of the Board shall have no vote in relation to any question arising which touches or concerns him; the decisions of the Board shall be by a majority of votes; in the event of an equality of votes, the Chairman shall have a casting vote; and the Board shall determine its own procedure. [Assent Date: 22 June 2012] [Operative Date: 13 July 2012] 5 6 (1) (2) 7 (a) (b) (c) (d) (i) (ii) (e) (f) (g) (h) 12