I move amendment No. 13:
In page 19 to delete lines 31 to 47, in page 20, to delete lines 1 to 46 and in page 21, to delete lines 1 to 28 and substitute the following:
"PART III
ENFORCEMENT
22.—In this Part, unless the contrary intention appears—
`complainant' means a person by whom a case under section 23(1) is referred to the Director;
`equality mediation officer' and `equality officer' shall be construed in accordance with sections 38(4) and 38(5) of the Employment Equality Act, 1997;
`respondent' means a person who is alleged by a complainant in a case under section 23(1) to have engaged in prohibited conduct.
23.—(1) A person who claims that prohibited conduct has been directed against any person may, subject to this section, seek redress by referring the case to the Director.
(2) No investigation of a claim by the Director shall be made unless the Director is satisfied that—
(a) the complainant has, within two months after the prohibited conduct is alleged to have occurred, or where more than one incident of prohibited conduct is alleged to have occurred, within two months after the last such occurrence, in writing notified the respondent of the nature of the allegation, the remedy sought by the complainant in respect thereof and the complainant's intention to refer the matter to the Director if the complainant is not satisfied with the respondent's response to the allegation, and
(b) the respondent has not, within a reasonable time after the notification referred to in paragraph (a), responded to the complainant to the satisfaction of the complainant.
(3) Subject to subsection (4), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of six months from the date of the occurrence or, as the case may require, the most recent occurrence of the incident of prohibited conduct to which the case relates.
(4) If, on an application made by the complainant, the Director is satisfied that exceptional circumstances prevented the complainant's case being referred within the time limit in subsection (3)—
(a) the Director may direct that, in relation to that case, subsection (3) shall have effect as if for the reference to a period of six months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and
(b) where such a direction is given, this Part shall have effect accordingly.
24.—On the request of a complainant, a respondent shall, in such form and within such time limit as the Minister may by regulations prescribe, provide the complainant with information in relation to the alleged prohibited conduct that will enable the complainant to reasonably decide whether the matter should be referred to the Director or, where the matter has been so referred, to reasonably present the facts involved in the matter.
25.—The Director may dismiss a claim at any stage in the investigation where the Director is of the opinion that—
(a) the complainant does not have a sufficient interest in the subject-matter of the claim, or
(b) the claim has been made in bad faith or is frivolous or vexatious or relates to a trivial matter.
26.—(1) Where it appears to the Authority that—
(a) prohibited conduct—
(i) is being generally directed against persons, or
(ii) has been directed against a person who has not made a claim under section 23(1) in respect of the prohibited conduct and it is not reasonable to expect that the person will do so, or
(b) a person has contravened or is contravening section 14(1), 15(1) or 21 or a regulation made under section 19 or 20,
the matter may be referred by the Authority to the Director.
(2) Where a matter is referred to the Director under subsection (1) it shall be dealt with in the same manner and to the same extent as if—
(a) it were a claim referred to the Director under section 23(1),
(b) the Authority were the complainant and the person alleged to have engaged in the prohibited conduct or to have committed the contravention referred to in subsection (1)(b), as the case may be, were the respondent, and
(c) where the matter involves a contravention referred to in subsection (1)(b), the contravention were prohibited conduct.
(3) Where, on application to the High Court or the Circuit Court, the Authority satisfies the Court that a person has been determined to have—
(a) engaged in prohibited conduct, or
(b) contravened section 14(1), 15(1) or 21 or a regulation made under section 19 or 20,
and that there is a likelihood of a further similar occurrence of the prohibited conduct or contravention by the person, the Court may grant an injunction or such other relief as the Court deems necessary to prevent the further occurrence.
27.—(1) Subject to subsection (2), if, at any time after a case has been referred to the Director under section 23, it appears to the Director that the case is one which could be resolved by mediation, the Director shall refer the case for mediation to an equality mediation officer.
(2) If the complainant or the respondent objects to a case being dealt with by way of mediation, the Director shall not exercise his or her powers under this section but shall deal with the case under section 28.
(3) Mediation shall be conducted in private.
(4) Where a case referred under section 23 is resolved by mediation—
(a) the equality mediation officer concerned shall prepare a written record of the terms of the settlement;
(b) the written record of the terms of the settlement shall be signed by the complainant and the respondent;
(c) the equality mediation officer shall send a copy of the written record, as so signed, to the complainant and the respondent; and
(d) a copy of the written record shall be retained by the Director.
(5) If, after a case has been referred to an equality mediation officer it appears to the equality mediation officer the case cannot be resolved by mediation, the officer shall issue a notice to that effect to the complainant and the respondent.
(6) Where—
(a) a notice has been issued under subsection (5) with respect to a case, and
(b) within 28 days from the issue of that notice the complainant makes an application to the Director for the resumption of the hearing of the case, and
(c) a copy of that notice accompanies the application under paragraph (b),
the Director shall proceed or, as the case may be, continue to deal with the case under section 28.
28.—(1) Where a case which has been referred to the Director under section 23—
(a) does not fall to be dealt with by way of mediation under section 27, or
(b) falls to be dealt with under this section by virtue of section 27(6),
the Director shall investigate the case and hear all persons appearing to the Director to be interested and desiring to be heard.
(2) An investigation under this section shall be held in private.
(3) The Minister may by regulation specify—
(a) procedures to be followed by the Director in carrying out investigations (or any description of investigation) under this section; and
(b) time limits applicable to such investigations, including procedures for extending those limits in certain circumstances,
but before making any such regulations, the Minister shall consult the Director and the Authority.
(4) At the conclusion of an investigation under this section the Director shall issue a decision and, if the decision is in favour of the complainant, it shall provide for redress in accordance with section 30.
29.—If, in the course of an investigation under section 28, it appears to the Director that a respondent has failed to comply with section 24, the director may draw such inferences from the respondents failure as seem appropriate.
30.—(1) Subject to this section, the types of redress for which a decision of the Director under section 28 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of discrimination; or
(b) an order that a person or persons specified in the order take a course of action which is so specified.
(2) The maximum amount which may be ordered by the Director by way of compensation under subsection (1)(a) shall be the maximum amount that could be awarded by the District Court in civil cases in contract.
(3) Where a claim is made by a person on behalf of an organisation described in section 3(1)(a)(ii) in respect of prohibited conduct directed against the organisation, any award of compensation in respect of the claim shall be paid to the benefit of the organisation.
31.—(1) Not later than 42 days from the date of a decision of the Director under section 28, the complainant or respondent involved in the claim may appeal the decision to the Circuit Court by notice in writing specifying the grounds of the appeal.
(2) In its determination of the appeal, the Circuit Court may provide for any redress for which provision could have been made by the decision appealed against (substituting the discretion of the Circuit Court for the discretion of the Director).
(3) No further appeal lies, other than an appeal to the High Court on a point of law.
32.—(1) Every decision of the Director under this Part shall be in writing and—
(a) if the Director thinks fit, or
(b) if any of the parties so request,
the decision shall include a statement of the reasons why the Director reached that decision.
(2) By notice in writing to the complainant and the respondent the Director may correct any mistake (including an omission) of a verbal or formal nature in a decision under this Part.
(3) If any person who participated in an investigation is not correctly identified in the resulting decision, the correction of that error shall be regarded as falling within subsection (2).
33.—(1) A copy of every decision of the Director under this Part shall be given to the complainant and the respondent and every such decision shall be published and a copy thereof made available for inspection at the office of the Director.
(2) Any reference in this section to a decision includes a reference to any statement of reasons included in the decision as mentioned in section 32(1).
(3) The contents of any document which is published or made available by virtue of this section shall be protected by absolute privilege.
34.—(1) If a person who is bound by the terms of a decision of the Director under this Part fails to comply with the terms of the decision, then, on an application under this section, the Circuit Court shall, subject to section 35, make an order directing the person affected to carry out the decision in accordance with its terms.
(2) If a person who is a party to a settlement to which section 27 applies fails to give effect, in whole or in part, to the terms of the settlement, then, on an application under this section, the Circuit Court may make an order directing that person to carry out those terms or, as the case may be, the part of those terms to which the application relates, but the Circuit Court shall not, by virtue of this subsection, direct any person to pay any sum or do any other thing which (had the matter been dealt with otherwise than by mediation) could not have been provided for by way of redress under section 30.
(3) An application under this section may not be made within 42 days of the date of the decision or the date of the written record of the settlement, as the case may be.
(4) An application under this section may be made—
(a) by the complainant;
(b) in a case where the Authority is not the complainant, then, by the Authority with the consent of the complainant if the Authority considers that the decision or settlement is unlikely to be implemented without its intervention.
(5) On an application under this section, the Circuit Court shall exercise its functions under subsection (1) or (2) on being satisfied—
(a) of the existence and terms of the decision or settlement, and
(b) of the failure by the person affected to comply with those terms.
(6) Without prejudice to the power of the Circuit Court to make an order for costs in favour of the complainant or the person affected, where an application is made by the Authority by virtue of subsection (4), the costs of the Authority may be awarded by the Circuit Court.
35.—(1) Where the Circuit Court makes an order under section 34(1), it may, if in all the circumstances it considers it appropriate to do so, include in the order the additional direction referred to in subsection (2).
(2) Where the order under section 34(1) relates to a decision requiring the payment of compensation to any person, the order may direct the respondent concerned to pay interest on the compensation at the rate referred to in section 22 of the Courts Act, 1981, in respect of the whole or any part of the period ending on the date of the order and beginning—
(a) 42 days after the date of the decision; or
(b) if it is later, on the date on which the compensation was required to be paid under the decision.
36.—(1) In this section—
`designated officer' means the Director, an equality officer or a person authorised in that behalf by the Director;
`material information' means information which a designated officer has reasonable grounds for believing to be relevant for the purpose set out in subsection (2).
(2) For the purpose of enabling information to be obtained which the Director may require to enable him or her to exercise his or her functions under this Part, a designated officer may do any one or more of the following:
(a) at all reasonable times, peaceably enter premises;
(b) require a person to produce to the designated officer any records, books, documents or other things which are in that person's power or control and which the designated officer has reasonable grounds for believing to contain material information, and to give the designated officer such information and access as the designated officer may reasonably require in relation to the contents of any such records, books, documents and other things;
(c) inspect and copy or take extracts from any such records, books, documents or other things;
(d) inspect any work in progress at any premises.
(3) The powers conferred by subsection (2) shall not be exercised in respect of a dwelling or any person, record, book, document or other thing in a dwelling unless the Minister (or an officer of the Minister authorised by the Minister in that behalf) certifies in writing that there are reasonable grounds for believing that there is in the dwelling information which is material to the investigation of a case, or the consideration of an appeal, under this Part.
(4) If a judge of the District Court is satisfied by information on oath of a designated officer that there is reasonable cause for suspecting that any records, books, documents or other things containing material information are to be found at any premises, the judge may issue a search warrant under this section.
(5) A search warrant issued under this section shall be expressed and operate to authorise a named designated officer, accompanied by such other persons as the named designated officer thinks necessary, at any time or times within one month from the date of issue of the warrant, on production if so requested of the warrant,
(a) to enter the premises named in the warrant, if necessary by force;
(b) to search those premises; and
(c) to exercise any such power as is described in subsection (2)(b) or (c) in relation to persons and records, books, documents or other things found at the premises.
37.—(1) For the purpose of enabling the Director to exercise his or her functions under this Part, the Director—
(a) may require a person who, in the opinion of the Director is in possession of, or has in his or her power or control, any information relevant to the exercise of those functions to furnish that information to the Director; and
(b) where appropriate, may require such person to attend before the Director for that purpose,
and the person shall comply with the requirement accordingly.
(2) A requirement under subsection (1) may specify a time and place at which information is to be furnished or a person is to attend, and if no such time or place is specified in the requirement, the person to whom the requirement is addressed shall comply with it as soon as is reasonably practicable.
(3) A person required to attend before the Director under subsection (1)(b)—
(a) shall answer fully and truthfully any question put to him or her by the Director (other than a question tending to incriminate the person), and
(b) if so requested by the Director, shall sign a declaration of the truth of his or her answers to any such question.
38.—(1) If it appears to the Director or an equality officer that a person has failed to comply with—
(a) a requirement under section 36(2)(b), or
(b) a requirement under section 37(1),
then, according as the case may require, the Director or the equality officer may apply to the Circuit Court for an order under this section.
(2) Subject to subsection (3) if, on an application under this section, the Circuit Court is satisfied as to the failure of the person concerned to comply with the requirement in question, the Circuit Court may make an order requiring that person to comply with the requirement.
(3) If, on an application under this section, the Circuit Court is of the opinion that the requirement in question purports to require the person concerned—
(a) to produce any record, book, document or other thing, or
(b) to furnish any information,
for which that person is entitled to claim legal professional privilege, the Circuit Court shall set aside the requirement.
39.—(1) In this section `information' includes any record, book, document or other thing in which the information is contained.
(2) No information furnished to, or otherwise acquired by the Director or any other person, by virtue of sections 36 to 38, or otherwise in the course, or for the purposes, of any investigation, mediation or hearing under this Part, shall be published or otherwise disclosed except—
(a) for the purposes of such an investigation, mediation or hearing,
(b) on the order of the High Court or the Circuit Court,
(c) with the consent of the person furnishing the information and of any other person to whom the information may relate,
(d) in a decision of the Director published or made available under section 33 and to which the disclosure of the information is relevant, or
(e) for the purposes of an application under section 38.
(3) A person who discloses information in contravention of subsection (2) shall be guilty of an offence.
40.—(1) A person who—
(a) obstructs or impedes the Director or an equality officer in the exercise of powers under this Part, or
(b) fails to comply with a requirement of the Director or an equality officer given under this Part,
shall be guilty of an offence.
(2) A reference in subsection (1) to an equality officer includes a reference to a person authorised as described in the definition of `designated officer' in section 36(1).
(3) In any proceedings for an offence under this section, a document purporting to be certified by the Director and relating to the circumstances in which the offence is alleged to have occurred shall be received as prima facie evidence of the facts stated therein.
41.—(1) Where a case is referred to the Director and, at any time after the expiry of one year from the date of the reference, it appears to the Director that the complainant has not pursued, or has ceased to pursue, the reference, the Director may dismiss the reference.
(2) As soon as practicable after dismissing a reference, the Director shall give notice in writing of that fact to the complainant and the respondent.
(3) Where a reference is struck out under this section, no further proceedings may be taken in relation to that reference, but nothing in this section prevents a person from making a further reference in relation to the same matter (subject to any applicable time limit).".
Amendment No. 13, despite its length, does not represent a fundamental change to the provisions of the Bill. The approach taken at present in section 22 is to apply the enforcement mechanisms of the Employment Equality Bill to equal status cases subject to certain modifications and exceptions. This approach may not be fully transparent and I consider it preferable for the convenience of all those who will have to refer to this legislation in the future to elaborate the redress procedures fully in this Bill.
This amendment spells out what is already contained in sections 22 and 23. It does not alter the enforcement mechanisms of this Bill, except in relation to partnerships. The amendment dealing with partnerships is to ensure that in cases under section 9 to which the EU directive on self-employed activity applies there will be no upper limit on compensation.
If the only redress available to a person alleging a breach of section 9 in this area were to be via the director of equality investigations, there would be an upper limit on the compensation which could be awarded by the director, namely that which applies in contract cases in the District Court. The provision I now propose to insert would give an aggrieved party an option of taking an action in the courts for whatever level of compensation her or she seeks.