This Fishery (Amendment) Bill is one of three which, in due course, will be submitted to the Oireachtas. The three Bills, if they receive the approval of Oireachtas Eireann, will, in effect, codify the whole fishery code into one Act; they will remove the existing anomalies which have grown up in the fishery code as the result of the fact that that code consists of a series of statutes dating from the earlier half of the 19th century down to to-day and it will also be a code of fishery law in which certain amendments have been made—and it is in regard to those amendments that the Bill which is now before the Seanad has to do.
This Bill consists of four Parts and a series of Schedules. Part I calls for no comment because it is mainly interpretation. Part II comprises two sections and the object of it is to simplify and clarify the law applying to the audit of accounts and procedure of boards of conservators. Reference should be made to the Second Schedule which sets out in detail the procedure which should regulate the audit of accounts of a board of conservators, and Section 6 takes statutory cognisance of a duty which, in practice, has always existed and the failure to discharge which has, on rare occasions —and could in the future, on rare occasions—created considerable difficulty. It becomes the duty of boards of conservators from time to time to pay out moneys or to do other acts and, as will inevitably happen with boards that do not consist of experts in the fishery law, in desiring to do the right thing, they sometimes do something which is not in conformity with their statutory duty. If a payment is made in those circumstances, when the auditor comes to audit the accounts surcharge falls to be made on the members who have been parties to the illegal payments. It is really part of the duty of the clerk, similarly as it is part of the duty of a clerk of a district justice, to be on the qui vive and to familiarise himself with the law relating to any payments which come up for consideration. He should warn the members of the boards of conservators if they are about by inadvertence illegally to make a payment or do an action.
Heretofore, although that duty was recognised, it had no statutory recognition. It was open to a clerk to sit back and evade his responsibility, record the proceedings and, if the members went wrong, to say "Let them go wrong". Section 6 here enables the clerk and directs him to object if the members of the body are about to do an illegal act. The only means whereby he can discharge himself personally from liability to surcharge is to satisfy the auditor that if an illegal act has been done he warned the members. Unless he can prove that he did warn the members he himself is liable. If he can prove that he warned them and that they did it in spite of the warning he frees himself from liability and the liability falls on the members who, having been warned, acted illegally. It is also his duty, analogous to the duty of the secretary of a local authority, to take a note of the members of a board of conservators who voted for a proposal and against it and of those who abstained.
Section 7 relates to the amendment of the law in relation to the fisheries rates. But for the fact that I am in a position to tell the Seanad that this Bill is one of three and that the purposes of the Bill will not be fully realised unless and until all three Bills have become Acts of Parliament, I should feel constrained to apologise for the format of Section 7, because it is a thoroughly bad example of legislation by reference. Inasmuch as it is only for the purpose of tidying up the situation with a view to producing ultimately a codifying Act which will set forth the whole law in one statute there clearly to be read, Senators will, I think, agree that in tidying up the short way is the best way as long as Senators have the guarantee that ultimately the law will be set out in permanent and comprehensible form.
Section 7 amends the section of the Fisheries Act of 1925 which inaugurated the present system of fisheries rates whereby boards of conservators are empowered to strike a rate on all fisheries in their respective districts which are rateable under the Valuation Acts. Every fishery liable to be rated by the conservators is exempt from liability to be assessed for rates by the local authority, and as a partial offset to the consequential losses to the local rates it is provided that where by reason of such exemption the rate collectible by a local authority has to be increased by more than 1d. there is recouped to such local authority from the Fisheries Vote the amount by which that increase exceeds 1d. in the £. Now as Senators will see, this is a reasonably complicated formula to grasp when it is first read out in that way. In practice, of course, it is well known to local authorities and boards of conservators and the calculation can readily be made. When the arrangement was first introduced the provision was that it would last for ten years. It was then extended for another two years by the Fisheries Act (No. 34) of 1935 and in 1937 a Fisheries Act passed in that year extended that arrangement for a further twelve years which carried it on to to-day. We now propose to extend that arrangement for a further 15 years. During the last 12 years the tendency of the Exchequer contribution has been to rise all the time. When the arrangement was first made I think the Exchequer contribution used to be in the order of £2,000. It has now gone to £11,200 but we anticipate, as I am sure Senators anticipate, that the rising trend of the rates has been arrested and we therefore hope that the liability of the Exchequer on this head will be stabilised at about £11,200. In that confident hope the Minister for Finance agrees to the continuation of the existing arrangement for another 15 years.
Part IV of the Bill deals with fines and forfeitures and shortly its purpose is this: fines and forfeitures arose down through the years out of a whole series of statutes with the result that a very complex procedure was attendant upon them and it was necessary for the district justice constantly to be on the qui vive to be sure under which Fisheries Act he was called upon to impose the penalty and what was the appropriate procedure for disposing of a fine which had been levied under that particular Act. There were various funds to which these fines were paid according to the Act under which they were imposed. We are seeking in this Bill to abolish that whole system of paying fines into specific funds and are seeking to provide that all fines will be paid into the Exchequer but that the Exchequer will be charged with the responsibility to pay out sums corresponding to what would have been payable if the funds created by the old statutes had continued to be the recipients of these fines. If, therefore, under one of these statutes one-third of a fine was payable into what used to be known as the Police Fund and is now known as the Garda Fund and two-thirds into the funds of the board of conservators, the fine will now be paid into the Exchequer and the Exchequer will pay out of Voted moneys a corresponding sum into the Garda Fund and a corresponding sum into the conservators' fund.
I want to make it clear to the Seanad that the purpose of these changes is to allow the courts dealing with these matters to proceed with the certainty that their orders are good and not subject to quashing because having imposed penalties they directed the monies to be paid into the Police Fund or to the board of conservators instead of the Estuaries Fisheries Fund or some other fund which in the special circumstances concerning individual cases the relevant statutes would require the moneys to be paid into. Now the district justice directs that the fine shall be paid into the Exchequer and the Minister has the duty to determine the way he shall direct the proceeds of that fine and that decision shall be taken at leisure and whatever that decision may be it does not call into question the validity of the decision of the court as to the destination to which the fine was to be orientated.
Heretofore, if a foreign trawler was found fishing within our territorial waters the district justice could impose a monetary penalty and he may or may not in his discretion confiscate the gear. This Bill proposes that on conviction of the offence of fishing within our territorial waters whatever fines the district justice may determine to be appropriate he has the mandatory duty to declare all gear confiscated.
Section 13 is for the purpose of making clear the meaning as we understand it, of Section 103 of the Act of 1942. A doubt has arisen as to whether a net of lawful design found on the banks of the river where netting is prohibited could be legally seized and forfeited without the apprehension of the owner or actual proof that an offence had been committed. Under the Act the forfeiture is proposed of a fishing engine which was believed to have been used or about to be used in an unlawful manner at the time of seizure.
