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Dáil Éireann debate -
Thursday, 22 Jun 1978

Vol. 307 No. 11

Fisheries (Amendment) (No. 2) Bill, 1978: Committee Stage (Resumed) and Final Stages .

SECTION 2.
Question again proposed: "That section 2, as amended, stand part of the Bill."

: I am happy with the Minister's reply in relation to the detention of a vessel, in that the Bill covers the detention for 48 hours when certain offences are suspected and also when a person is charged and up to the time of appeal. I was concerned that in the really important time, which is after the imposition of the penalty, there is adequate provision for the detention of the vessel in all circumstances so as to ensure that the fine will be paid. Is the Minister satisfied that there is a provision in the Principal Act to cover this? There is no point in imposing a fine of £100,000 unless we can collect it.

: Section 236 of the Principal Act of 1959 to which the sections in this Bill relate adequately covers the recovery of fines for offences and so on. It is the basic grounding section under which this can be done.

: There is one other small aspect that concerns me somewhat about this section. We would have a provision whereby a master of a vessel, who would not be an owner, would be the person who would be charged. He would be the person who would be convicted and fined possibly up to £100,000. He would not be the owner of the vessel and probably would not have the funds available to pay the fine. Is the Minister satisfied as to the constitutionality of seizing and selling a vessel owned by another party to pay a fine imposed on a fishing skipper? I am somewhat concerned that this point would be raised subsequently in legal proceedings. We have the position that it is the master of the vessel and not the owner who will be prosecuted.

: Of course, in Irish courts—by reason of having a Constitution—there is always the risk of that type of situation. But in practice —and this has been proved by usage throughout the world—really the only way for a national jurisdiction to get at a particular offending party—which, as the Deputy rightly says, can often be the firm and the owners who are away in another jurisdiction—is through the master and the vessel. While I appreciate the Deputy's point, the practicalities of the situation outweigh any constitutional or academic point.

Question put and agreed to.
Section 3 agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill."

: I have two worries on this section. This is the section which provides for forfeiture of the actual boat used in the commission of certain offences. I understood from the Minister last week that this provision would not apply to or would not result in the forfeiture of an Irish fishing boat.

: That is not correct. It can apply.

: I was merely quoting from the Minister's reply to a question from Deputy Begley on 13 June.

: There is a misunderstanding on that. That is not the case.

: I accept what the Minister says now in relation to my reading of this section.

: At that stage I did not have the Bill to hand, if the Deputy remembers. I was replying to the debate initiated by Deputy Deasy.

: If I recollect correctly by reference to a very rough draft. Greater attention may have been paid to the Minister's comment last week than he realises, to the fact that he said it would not apply to Irish vessels. I am somewhat concerned that Irish fishing boats could be seized. I suppose if one looks at it there is far more possibility of Irish boats feeling the brunt of this section and the owners and skippers finding their boats seized because they have been fishing all the time in Irish waters.

: Except that it is discretionary now. That is the saver in the section.

: I accept that it is discretionary. I have to look for the lesser of two evils—and I am anxious to ensure that this Bill goes through straightaway—but if there had been time I would have put down amendments to ensure that it would not apply to certain offences. For instance, it applies to a second charge relative to the carriage of certain fishing nets on Irish sea-fishing boats. Under section 226 of the Principal Act the fine for such an offence was very small, in fact, in certain circumstances, only £50. As a result of the extension of this section we now find it includes provisions such as that the master or owner of such a fishing boat may find his vessel confiscated. I am somewhat concerned by such a provision, because at all times we took the view that we wanted to stop foreign poaching. We accept that legislation must be non-discriminatory. But at the same time there is no need to specifically include sections which relate only to Irish boats. For instance, section 226 of the Principal Act refers specifically to Irish sea-fishing boats and certain other vessels. Therefore, in fairness, it is not confined totally to Irish fishing boats. I want to voice my concern at this fact. The fishing fraternity in this country may be somewhat worried at having this sort of threat hanging over their heads. However, we are letting the Bill go through and I cannot put an amendment down at this stage. Possibly in the context of a fisheries debate conducted with more order and time to it we may get back to this point in the future.

There is one other specific point to which I want to refer. Here I am again directing my remarks against the foreign trawler. Paragraph (a) refers to a conviction being a second or subsequent conviction on indictment under any of those sections committed on board the same boat. I wonder is that the proper terminology to use. Some of the offences to which we refer in sections 221, 222, 222A, 223, 223A, 226 and 227 of the Principal Act are not actually committed on board the vessel. I think I am correct in saying that section 221 refers to a restriction on foreign sea-fishing vessels entering our exclusive waters. For example is the use of the words "on board" proper in these circumstances? If somebody is guilty of an offence of illegal entry in our exclusive waters is it proper to say that that offence in committed on board a certain vessel? It is a point of terminology, but I wonder if it is the correct way to have the section drafted.

: On the last point raised by the Deputy, I do not see how it could be done any other way. I know it is a drafting point. What we are trying to do is to pin down the conviction in relation to the second offence in regard to the same boat. Then, under paragraph (b), the boat itself is in the ownership of the same person. That is the only way to get at the situation having regard to the necessity to get at the same boat repeating its offence and the same owner. However, as the Deputy acknowledges that is a matter for the draftsman.

In regard to the other point raised by the Deputy in relation to Irish fishermen, by reason of certain offences that are here, the matter for indictment being subject to this section in regard to confiscation of the boat, the section is governed—and let us be practical and use common sense about it—by the court at its discretion ordering the boat to be forfeited. I have sufficient confidence in Irish courts in that respect that they will not start ordering the confiscation of a boat except in a very serious case that really warrants it. In practice that confiscation procedure will hopefully be directed at really major offences. I know that technically the Deputy is correct. It can procedurally apply to some of the offences under Table I in relation to Irish fishermen in respect of an offence in regard to fish and gear, under-sized fish, wrongly-meshed nets, and so on, where there is a fine of up to £10,000 on indictment.

Technically, on the second offence, this could apply, but in reality the courts are there to exercise common sense. I do not have to tell the Deputy, who is a practising lawyer, that the courts would not order the confisca-tion of the boat in a case like that. Obviously the procedure is designed to get at the really serious cases involving foreign fishermen or major commercial organisations which come here and proceed to flout the law to the extent that they become liable on a second offence on indictment to very heavy penalties. The offence must be a serious one and the court rightly has the power to deal with that offence by way of confiscation of the boat.

The Deputy adverted to the point that we must appear in this legislation to be non-discriminatory. The application of the law is a matter for the discretion of the court but, so far as the actual law is concerned, it must be non-discriminatory. We cannot appear to discriminate in any way in favour of Irish fishermen and vice versa. The law must be the same for the specific offence. The Irish fishermen would be involved if he had unlawful fishing gear or had caught unlawful fish. That is the only respect in which he is involved and the penalties against him are set out in Table 1. We cannot have one law for him and another for the foreigner. I am certain an Irish court will take the appropriate common-sense view in regard to the confisca-tion of the boat.

: I accept the common sense of the courts, but it is a little unfair to expect the courts to discriminate in regard to Irish fishermen.

Question put and agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."

: Is the Minister satisfied that as this section is framed the prosecution would be able to discharge the onus of proof? The section provides:

"(1) It shall not be lawful for any foreign sea-fishing boat to enter within the exclusive fishery limits of the State except for—

"(a) a purpose recognised by international law, or

(b) a purpose recognised by any convention, treaty or arrangement for the time being in force between the State and the country to which such boat belongs, or

(c) any other lawful purpose."

(2) If a foreign sea-fishing boat enters within the exclusive fishery limits of the State in contravention of subsection (1), the master of the boat shall be guilty of an offence."

Is the onus of proof on the defendant to justify the lawfulness of his entry? If not, I would be very anxious that the onus of proof should be shifted to the defence and the only onus of proof on the prosecution would be to prove that the boat was in exclusive waters and thereafter the defendant would have to justify his position.

: I agree this is not an easy thing to prove, but whether we should shift the onus of proof is another day's work.

: My concern is that the section as it stands appears to me to be impossible to implement.

: Heretofore entry was linked with actual fishing. It was not a separate offence. We are now trying out a new offence. I appreciate the difficulties involved in the actual proof.

: Is there any possibility of a further amendment at this stage?

: The difficulty here is that one is interfering with the whole onus of proof. The Deputy suggests we should shift the onus?

: Not entirely. The prosecution would merely prove the vessel was within our waters and the onus would then shift to the defendant to justify his entry. He could justify it on the ground that he was landing an injured seaman, or because of some special quota, or some provision in international law. As it is, the section will be inoperable because the prosecution would appear to have to negative all these things before there would be a case against a foreign trawler for illegal entry.

: I am advised there have been successful prosecutions under the old combined offence but, as a lawyer, I can see the difficulty. The Bill will, hopefully, go back to the Seanad next week and between now and next week I will have another look at it. The Government amendment to section 2 was actually suggested by Senator Cooney, but I will certainly have a look at that particular aspect between now and next Wednesday.

: I shall be happy with that. Once the proof of entry is there the onus should be on the defendant to justify entry.

Question put and agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."

: Here again the point in regard to the onus of proof might be looked at.

: It is the same point.

: It could be of relevance and the Minister might look at it as well. Under subsection (2) the Minister may make regulations in regard to the maintenance of good order among foreign sea-fishing boats within our exclusive fishery limit, and subsection (3) provides that the master shall be guilty of an offence when he has done something in contravention of subsection (1). Now there appears to be no enforcement provision. In those circumstances there does not appear to be much point in the Minister making regulations for foreign sea-fishing boats. The subsection does not state it will be an offence to be in contravention of any regulation the Minister may make under subsection (2).

: Does that not come back to sections 2 and 3 in which the actual offences and penalties are set out? What the Deputy is referring to relates back to those sections. The Minister may make regulations for good order and so on in regard to nets, gear and so forth. The penalties and the offences are set out in sections 2 and 3.

: With respect, section 2 refers to contravention of particular sections. Section 3 increases the fines in respect of offences under particular sections and this section refers to a contravention of this section. At the same time it gives the Minister power to make regulations but does not provide any sanction for the breach of those regulations.

: The regulations envisaged here relate to gear and are covered by Table 1 of subsection (2).

: It does not appear to be a major point, but I think the Minister is referring to offences under particular sections. I do not think a provision providing for penalties in relation to a breach of the section would cover a breach of a regulation.

: The Deputy is wrong. The regulations can provide for, say, gear for a specific type of fishing in a certain area or mesh size for nets in an area, and if these regulations are offended against they can be the subject matter of proceedings by way of indictment as set out in Table 1.

: It occurred to me that it would be necessary after the words "a contravention of subsection (1) of this section or of any regulations made under subsection (2)" to add the words "Then the master of the vessel shall be guilty of an offence".

Question put and agreed to.
Section 7 agreed to.
SECTION 8.
Question proposed: "That section 8 stand part of the Bill."

: This section refers to the prohibition of certain methods of fishing within existing limits of the State. It appears to affect Irish fishermen as well as foreign poachers.

: It does indeed.

: From that point of view it is possibly a bit worrying as to how far these regulations may go.

Question put and agreed to.
SECTION 9.
Question proposed: "That section 9 stand part of the Bill."

: I notice in many statutes that power is being given to the Minister which in many cases can be virtually absolute power. I wonder what control over the Minister there may be when he is making these orders. He can make orders relative to the conservation of fish stocks. He can make such orders "as the Minister thinks proper". Is there some provision whereby these orders will be laid before the Houses of the Oireachtas for approval? What are the checks and balances on the making of such orders? As the section is now framed, it appears that the Minister has unlimited jurisdiction. For instance, he could order that all Deputies from coastal constituencies when they are near the coast might wear black in case they frighten away the fish. I use this example not really expecting such an order but merely to put on the record that I am concerned that any Minister can reserve unto himself very wide-ranging powers. I would be very anxious to know whether any orders or regulations made under such sections would be laid before both Houses and scrutinised by the Members of the Oireachtas before they come into effect. Some of these orders can be issued and unless they are objected to they come into effect. With the volume of paper coming out it is very difficult to have them looked at properly. Would the Minister tell me what checks and balances there might be in relation to the type of order that could be made under this section?

: The principle enshrined in this section is on all fours with that enshrined in section 35 of the Fisheries Act, 1962, concerning conservation of fish stocks and rational exploitation of fisheries. That section is now repealed and is being replaced by this section. There is no change in the wording of the Bill as it relates to the main principle of conservation and exploitation of fisheries. The purpose of the repeal is that when section 35 of the 1962 Act was enacted the limits were 12 miles and there was a need for international agreement in regard to waters of interest to us outside 12 miles. Since 1 January 1977 we are into a 200-mile zone as far as fisheries are concerned and we do not have any need for international agreements outside the Community, which are a separate matter.

I agree with the Deputy on the importance of having such orders laid before both Houses. The section as it now stands is still governed by section 36 of the 1962 Act which provides:

"Every order made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next subsequent twenty-one days on which that House has sat after the order was laid before it, the order shall be annulled accordingly but without prejudice to anything previously done thereunder."

The usual procedure for laying orders before the Houses of the Oireachtas governs this section. This highlights the need for consolidation of legislation.

Question put and agreed to.
SECTION 10.
Question proposed: "That section 10 stand part of the Bill."

: This section relates to the special powers of sea fishery protection officers and is one of which I approve. It occurred to me, relative to our earlier discussions on the question of aerial reconnaissance, to ask if the Minister considered there was any need for a particular provision to cover the position where an aeroplane spots illegal fishing and attempts to intervene. I am not an expert on this point but I understand that if a plane comes upon a vessel fishing illegally there are internationally recognised signals whereby it can direct the vessel to haul in its nets and travel to the nearest port. I am not sure of this point but I have heard of something of this kind. Are we in the situation whereby any aerial reconnaissance is to be totally by way of assistance to the naval vessels, in other words, that the aircraft officers can do no more than radio to the naval vessel outlining the position of the offending vessel? I understood that spotter planes could fly low, attract the attention of the offending vessel and by way of internationally-recognised signals direct it to travel to the nearest port. I understand there have been cases in Canada recently where prosecutions have rested solely on the evidence of the officers of spotter planes.

I am interested also in the prosecu-tion of the Spanish vessel referred to in a report in the The Cork Examiner of May 20. In this case it appears that it was the crew of an RAF Nimrod aircraft who gave the evidence after a chase across the Irish Sea. If in other countries the evidence of aircraft officers alone is sufficient for a prosecution should not the type of power we are talking of be extended to include officers of the Naval Service? To put it another way, is it possible that a vessel of the Naval Service on fishery reconnaissance work could be regarded as a sea-fishery protection vessel? I am merely exploring the boundaries of what might be useful in regard to the use of spotter planes and of what might be necessary from the point of view of legal battle in the future. Is the Minister satisfied that there is sufficient statutory backing in this area.

: The Deputy has raised a very interesting point, but basically I see the immediate improvements in this area to be rather in the practical or in the technological area. We wish to have the aircraft more organised both by way of photographic equipment and ability to fix location in order to give supplementary evidence. The aircraft physically may not land on the boat. Therefore, the most effective way within our present resources to conduct the operation efficiently—and we are only starting on this development here—is to maximise the efficiency of the spotter plane as an adjunct to the naval boat that must make the capture and arrest. In that respect the naval officers have the same powers as fishery officers. One might say that the naval officers stand in the shoes of the fishery officers when making an arrest of this kind.

However, the matter is worth considering and I am glad that the Deputy has raised it. One of the better results of this debate has been the whole emphasis on aerial reconnaissance and investigation as an adjunct to the apprehension of poaching vessels. For the moment we should concentrate on that aspect rather than on the further aspect suggested by the Deputy.

I appreciate that the Canadians use very advanced fishery protection vessels. I intend having discussions with my colleague, the Minister for Defence, in this respect. Perhaps we could consider the system used in Canada. Apparently the Canadians have the best reputation in the world in this whole area of fisheries protection.

Question put and agreed to.
SECTION 11.
Question proposed: "That section 11 stand part of the Bill."

: This section provides for two days' detention, something of which I approve in the circumstances, but is the Minister satisfied that the powers being assumed in the section are constitutional?

: My advice is that the section is constitutional. The Attorney General has advised me accordingly. I do not see anything excessive about 48 hours detention. Such a period of detention has been on the Statute Books for a number of years now in respect of other offences committed in the jurisdiction. There has been much contention about the extension of the period but it is fairly widely accepted now that 48 hours is a recognised period of detention. The courts have regarded this as being reasonable and I do not regard its extension from the personal offences area to which I have referred to this area as being unconstitutional or unreasonable—hallowed by practice.

: Would the powers under this section be used possibly against Irish fishing boats?

: Yes. They could be so used, but again I must emphasise that we cannot discriminate in our legislation. However, it is obvious that the power of detention provided for here is designed almost entirely to ensure that a foreign fishing boat would be dealt with in a systematic way while at base. I assure the Deputy that this is the whole purpose of the section. I have been talking about this during the past couple of days in Luxembourg where, I am happy to say, people are becoming concerned about our legislation. When I was asked questions about this aspect of the situation I was able to give an assurance that our legislation was non-discriminatory. Of course, the common-sense of the courts will enter into all of this.

: I agree in principle with the Minister's intention and I regret that we need legislation to ensure that foreign vessels entering our waters can be searched properly. For that purpose a detention period is needed, and I do not consider 48 hours detention to be excessive. How-ever, I am genuinely concerned that in practical terms it may be difficult to see how the provision might be used against Irish fishermen. We are putting on the Statute Book a provision that will enable an Irish fishing boat, its skipper and the rest of the crew to be detained for 48 hours on suspicion of what may be even a relatively minor offence. A foreign vessel would probably be charged ultimately with a serious offence, such as illegal entry or illegal fishing, but the powers under the Fisheries Act relate also to a large number of offences that are not as serious as those and some of which are relatively minor offences. I accept the proposal in the practical sense and it is difficult to envisage such a power being over-used in respect of Irish boats, but I am not happy that an Irish crew could be detained on suspicion for 48 hours for possibly a minor offence. However, I must face the lesser of two evils. I have no wish to hold up the legislation because it is important that it is enacted before we adjourn for the recess, but I must record my disapproval at the enactment of a provision such as this.

: Irrespective of whether this legislation is being rushed, even if we had six months during which the Deputy could put down amendments to provide for discrimination as between the same offences, I could not accede to such amendments.

: I appreciate that in the context of our European obligations our statutes must appear to be non-discriminatory. The purpose of this provision is to enable investigation of offences by boats coming from outside our waters. We are providing an all-embracing provision which will permit the 48-hour detention to apply to what may be a relatively minor offence by an Irish vessel. I believe that, if we had the opportunity, we could probably find a way around it by providing that such powers can be exercised only in relation to those sections concerning foreign poaching.

: One of the most blatant breaches of fishery laws is being committed and will continue to be committed, unless we stamp it out, by foreign boats, who are using wrongly meshed nets and scooping up undersized fish. That is precisely the area the Deputy is talking about.

: Within our waters?

: We had a couple of sections relating to illegal entry and the illegal fishing by foreign vessels. I would be much happier to see the 48-hour detention applying only to suspicion of offences having been committed under those sections.

: It is only required for the offences where the illegal nets and the undersized fish are involved. They are the precise areas which require investigation and where illegal trawling and other fishing gear methods are being used. Those are the areas which require the investigation in the boat. We want to get at those offences and that is the reason why we want the 48 hours detention.

: They would have to be within our waters.

: Let us assume we can apprehend a foreign boat and we do not apprehend it fishing. We bring it into port and find undersized fish in it and illegal mesh or illegal gear in it. We want to be able to do that in the port. This can only be done by a thorough investigation by the fisheries officer with experience in this area who can take out his instruments and measure the whole situation and come up with hard evidence. That cannot be done at sea. The purpose of this section is to get at that sort of offence.

: That is a good point, but to get at him at all he would have to be within our waters. He could be brought in on suspicion of illegal entry.

: He can be within the 200 miles. Within our exclusive waters only applies to the 12 miles. I am talking about the whole stretch out to 200 miles which we now have but which are not our exclusive limits. In that area we want to get at this type of fishing.

: I do not have any easy answer to this. I am still a bit concerned about putting very broad powers on the Statute Book which may be abused in the future. That is the only point I wish to make.

Question put and agreed to.
Section 12 agreed to.
SECTION 13.
Question proposed: "That section 13 stand part of the Bill."

: I wonder if, in relation to subsection (2) (a), the word "alleged" should be put in in the first line before the words "an offence or offences"? I am not sure if it is necessary but perhaps the Minister might have it looked at.

: I will. That is a drafting point.

: I am afraid the Minister cannot put it in at this stage.

: It is going back to the Seanad.

: I have my doubts about that. If it is a small drafting amendment, by agreement of the House we could take it now. The Minister would need to be careful of the Seanad. I am sorry to get in here. The only thing going back to the Seanad is the amendment, if I understand it correctly. I am not the final arbiter on that.

: I am not saying I will do it. I am just going to have a look at the situation. There is nothing to prevent me bringing in an amendment in the Seanad.

: The Minister should be careful here. We can do it by agreement if it is only just a matter of writing in a word.

: Will the Deputy make the point again and we can possibly look at it here.

: I presume we will be going on to the Report Stage in a little while. We could prepare it for Report Stage if necessary.

: I am concerned that this provision relates to an order under section 234 (1) of the Principal Act, which refers to the detention of the boat and persons pending prosecution. In those circumstances it occurred to me that if one was detaining a boat pending prosecution one could not refer to an offence or offences, that one would have to refer to an alleged offence or offences. It would not be proved to be an offence if prosecution was pending. It is a small drafting point but let us try and make it as good as we can.

: If the Minister will give us the precise amendment we can take it now.

: It is to put in the word "alleged".

: Where? In what line? For the record, we have to be careful what we are doing.

: I have in mind putting in the word "alleged" before the words "offence or offences".

: Is the Deputy looking at the wrong printing? The Deputy had not got the correct printing earlier on.

: Maybe it has already been remedied. It is section 14 (2) (a) at the top of page 10.

: We have not got away from section 13 yet.

: We are not on the section yet.

: We are talking at cross purposes.

: I am sorry. The printing I had was slightly changed by one that was circulated this morning.

: It is not relevant to the section we are at.

Question put and agreed to.
SECTION 14.
Question proposed: "That section 14 stand part of the Bill."

: It is subsection (2) (a), the first line on page 10. Is it necessary to put in the word "alleged" between "an" and "offence"? I am not certain if it is necessary. It is purely a drafting point.

: I see that phraseology is used right through the whole Bill. I do not see how we can put it in in one case and not put it in in another. I am not a draftsman but it would certainly add enormously to the difficulties of redrafting the Bill and I do not think it is really sensible at this stage.

: It is not. It would be very unwise to start interfering with the Bill.

: I am happy if the Minister is happy. I would prefer to see the draftsman looking at it.

Question put and agreed to.
Sections 15 to 17, inclusive, agreed to.
SECTION 18.
Question proposed: "That section 18 stand part of the Bill."

: Who will actually prosecute, the Minister, the Attorney General or the local fishery board?

: I can prosecute through the Attorney General.

Question put and agreed to.
Sections 19 to 23, inclusive, agreed to.
Title agreed to.
Bill reported with amendment and passed.
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