I move that the Bill be now read a Second Time.
Customs (Temporary Provisions) Act, 1945 (Continuance) Bill, 1950—Second and Subsequent Stages.
This is a Bill to provide for the continuance for five years of the Customs (Temporary Provisions) Act, 1945. This Act took effect from the date of its passing, 24th April, 1945, but under Section 14 the Act was to continue to the 31st March, 1950, and shall then expire, so unless this continuing piece of legislation is accepted the Act of 1945 will lapse on 31st March of this year. The Act of 1945 was passed to meet certain difficulties which had previously been found in the customs code in regard to goods which it was prohibited to export and of which illegal exports were taking place. Many years before 1945 there was a series of Customs Acts and a consolidated Act dealing with the illegal importation of goods where import was prohibited. It also dealt with goods that were restricted in their importation by means of tariff or otherwise, but there was no code in existence with regard to export restrictions. The Customs Consolidation Act of 1876 was brought into force with a few provisions regarding exports and the prohibition of the export of goods. Export prohibitions came into operation from time to time and an attempt was made by patchwork legislation and later by Orders to amend the old time law to meet new requirements. The adaptations were very limited in scope. Eventually the Scrap Iron (Control of Export) Act, 1938, was passed which contained detailed provisions with regard to exports on the lines of the Customs (Consolidation) Act of 1876 and they were applied in the case of this Act. A number of other prohibitions came later and eventually all these prohibitions were operating under Orders made after the Emergency Powers Act, 1939, had passed. The Orders again proceeded in a sort of adaptation and you had the absurd situation, that in regard to the export of dairy produce such as butter, offenders were all prosecuted under Prohibitions of the Scrap Iron (Control of Export) Act. You had a good deal of amusement when the cases came to the courts when the Scrap Iron (Control of Export) Act was referred to as being the basis for the prohibition of the export of dairy produce. The machinery was obviously awkward and the powers under its scope were definitely inadequate for the purposes for which they were required. The Act of 1945 was accordingly drafted to provide a permanent measure dealing with export prohibitions, or the irregular export of goods in the same way as previous Customs Acts had dealt with irregular importations.
A considerable amount of disagreement with the measure was voiced when it was brought in, in 1945, and, at a late stage of the discussion on it, the Minister in charge decided to accept an amendment making the piece of legislation operate for only five years. If the Act is allowed to lapse on 31st March this year, the Revenue Commissioners will have no administrative powers over the wide range of exports that still remain on the prohibited list. Many of these articles are on that list because of shortages which it is hoped are temporary, but certain others are of a type for which permanent control will be necessary, dictated by either economic or some type of social necessity. Articles of agricultural produce are to a great extent prohibited at the moment and dangerous drugs also suffer a prohibition. We regard the latter as being one of social necessity. The Act was passed at the end of April, 1945, and since its enactment, there have been 649 prosecutions under it. Nearly all of these have been successful. That particular statistic takes no account of the tens of thousands of seizures which have never gone near the courts.
The whole situation with regard to the Border has become very demoralised and has deteriorated very badly since the days of export prohibitions and more particularly since the scarcities occasioned by the Emergency of 1939 arose. Smuggling is quite a valuable business to engage in in present conditions and very definite rackets developed around the Border under the circumstances. Gangs were organised, with their own scouts, and people hired garages for the temporary receiption of certain articles which it was intended to smuggle. The counter to that on the revenue side had to be that corresponding groups of officers had to be associated in an effort to prevent the smuggling. Notwithstanding the difficulties put in the way and notwithstanding the very serious disadvantage under which the Revenue authorities operated, I think it can be claimed that, in the main, the serious smuggling across the Border has been suppressed. There were two types of smuggling which were much more serious than any others—one, the smuggling across the frontier of gold and the other, the smuggling of motor cars. These were very serious and threatened to become still more serious, but owing to the patient and persistent detective and investigation work done, I think it can be claimed that these have been suppressed.
This is not the type of legislation which any lawyer finds it easy to accept, but I have been coerced by circumstances put before me by the Revenue Commissioners to accept responsibility for this particular continuing legislation. I am advised that, without the Act, the successful prosecutions could not have been achieved and the successful prosecutions, as well as the seizures, have been the means of bringing what might have been quite serious breaches of the law to an end. I am also advised that, without these powers, the administration of the Revenue Commissioners would be made so difficult as to render their task almost impossible and that a free field would be left to those who engage in the modern racket of smuggling. On these grounds, I recommend the Bill to the Seanad.
While we regret the circumstances surrounding the introduction of this Bill—circumstances brought about not by any Act of an Irish Parliament but by an Act of a foreign Parliament—and while we regret that we should have customs barriers as between one section of our people and the other, we feel that we must give to the authorities every power they deem necessary to enforce whatever regulations are drawn in connection with measures of this kind. We are therefore prepared to give the Minister all stages of this Bill to-day.
I have a fairly clear recollection of the debate in this House when the previous measure, which it is proposed to continue, was being debated. It was passed without any vote against it, but with a certain amount of reluctance. All sides were prepared to give what they regarded as adequate powers to deal with smuggling and accepted the views which have just been expressed by Senator Hawkins, but one difficulty stuck in the minds of a number of Senators, and frankly I regard it as one of the flaws in this legislation as a permanent measure, that is, it provides that in certain cases the onus of proof is placed on the individual charged, which means that that individual is presumed to be guilty rather than innocent. I quite agree, and I do not think anyone can dispute, that it was necessary to have an Act of this kind and that portions of it should be permanent, but I should like to know from the Minister whether he is perfectly satisfied that those portions of the Act which place the onus of proof upon the individual are still regarded as an essential part and, if so, if it is really a good or a wise thing.
I did not give the Minister notice of the question I am now about to ask and he may possibly be unable to answer it, but when the Bill was before the House, the then Minister for Finance, Mr. Ó Ceallaigh, in reply to, I think, Senator Sir John Keane who said that this principle had never been found in British legislation, said, in effect, that, in 1939, a British temporary Act was introduced which contained certain similar provisions but which also contained the objectionable provision that the onus of proof should be placed upon the individual, and I should very much like to know whether that 1939 Act, which was temporary in Britain, has become permanent and is being continued at present.
I have no evidence and none has been brought to my notice to suggest that this Act has been used in any unfair way to harass people, as could easily be done, and I make no charge whatever of that nature, but I was rather amused on looking up the previous debate to find that, when I asked the then Minister for Finance how a shopkeeper could possibly know whether, when someone came into his shop and bought an article, that person intended to export it, the Minister said it ran through his mind that possibly if the person had a northern accent it might be suspicious. I have an idea that the present Minister will not agree with his predecessor in that, though he appears to agree with him in the main.
I do not think there is anything to do but to allow this to become law, but I ask the Minister seriously to consider whether it is necessary to continue it for another five-year period, whether certain portions of it should not be regarded definitely as temporary and whether it would not have been better to have fixed on two years. I also found in the debate on the previous Bill that Senator Baxter, having been assured by the then Minister that it was temporary, said he could not believe it would be for only five years.
Ní dóigh liom gur gá don Aire aon leithscéal a glacadh leis an Seanad mar gheall ar an mBille a thabhairt isteach. Is dóigh liom, is cuma cé acu a bheas ganntann ann sna blianta atá le theacht nó nach mbeidh, go mbeidh gá le cuid mhaith de na cumhachtaí atá sa mBille a bheith ann go seasmhach. Ní thaithníonn linn dlí a dhéanamh chor a bith. Chomh luath agus smaoinimid ar dhlí a dhéanamh, tagann ar intinn againn go bhfuil muid le cur isteach ar dhuine éigin nó le cur as do dhuine éigin. Is dóigh liom go mbeidh i gcónaí earraí áirithe ann a mba mhian linn nach gcuirfí as an tír iad, nó nach gcuirfí as an tír iad gan údarás speisialta. Dá n-abródh an tAire go raibh faoi Acht buan a dhéanamh den Acht seo, ní chuirfeadh sé isteach ná amach orm agus déarfainn nach mbeadh aon locht agam air.
Taithníonn liom an méid adúirt an tAire mar gheall ar an laghdú atá tagaithe ar chuid den gnó mídhlisteanach a bhí ar bun. Ba mhaith liom a fháil amach uaidh, más féidir leis a innseacht dúinn, a bhfuil an laghdú ar an ngnó mídhlisteanach tagaithe mar gheall ar go bhfuil an gá a bhí leis an gnó mídhlisteanach san imithe uilig, cuid mhaith nó mar gheall ar go bhfuil na fórsaí atá ag cosaint na Tórann éirithe i bhfad níos éifeachtaí ná mar bhí. B'fhéidir gurb é an chaoi nach bhfuil an oiread gá le trádáil mídhlisteanach is bhí, agus ag an am chéanna go bhfuil na fórsaí atá i bhfeighil cúrsaí custaim ar an Tórainn éirithe i bhfad níos cliste agus níos éifeachtaí ar an obair.
Dúirt an tAire gur tugadh suas le 650 cásanna os comhair na cúirte faoin Acht agus ba mhaith liom go bhféadfadh an tAire a innseacht dúinn céard a tharla sna cásanna seo. Ar cuireadh príosúntacht ar na daoine nó príosúntacht agus fíneáil nó fíneáil amháin? Ba mhaith liom go mbeadh tuairim agam ar cén chaoi a raibh an breithiúnas ar na cásanna roinnte. Rinne an tAire tagairt do na mílte "seizures" ach níor thug sé na figiúirí dúinn, beag ná mór. Bhfuil aon tuairm ag an Aire ar cé mhéid ab fhiú na hearraí a gabhadh faoin Acht? Rud atá ar intinn agam, ba mhaith liom sórt léargas a bheith agam ar cé mhéid a chosain scéal seo na Tórann ar feadh réim an Achta. Ba mhaith liom freisin—ní dóigh liom go mbeadh sé as bealach ar an mBille seo—a iarraidh ar an Aire a innseacht cén costas atá ar an Stát ó bhliain go bliain maidir leis na Seirbhísigh Chustaim fré chéile. B'fhiú go mbeadh a fhios againn faoi sin.
Ar an Tórainn?
Ar an Tórainn amháin. Bheadh sé oiriúnach ar an ócáid seo go bhfaigheadh muid léargas ar an méad costais atá an Tórainn a tharraingt. Dúirt mo chara, an Seanadóir Ó hEachain go bhfuil an trioblóid seo ar fad ag teacht ar aghaidh mar gheall ar an Tórainn. Is dóigh liom gur fíor é sin, ach níl aon neart air go fóill. Ba mhaith liom go mbeadh a fhios ag an tír céard é an costas a bhaineas leis an Tórainn, idir príosúntacht, fíneála agus earraí, maraon le postanna do sheirbhísigh.
Ní thaithníonn liom de ghnáth go mbeadh Bille os ár gcomhair a bheadh ag cur as do dhaoine eicínt. Taithníonn liom an tuairim a nochtaigh an tAire, go bhfuil an gá atá leis an mBille imithe go mór i laghad. Tá súil agam nach mbeidh gá leis chomh fada agus bhaineas sé leis an Tórainn agus ní miste liom go mbeadh an lá againn nuair nach mbeadh sé i bhfeidhm go seasta.
It has been brought to my attention that recently certain changes have been made in regulations particularly governing the import of machinery spare parts. This was brought to my attention in the case of a firm requiring refrigerating spare parts for industrial type refrigerators. Heretofore, for a period of 25 years, these parts were imported free of duty. All that was required was that the customs forms should be sent to the port of entry and the goods would be passed through free of duty. A new regulation has been made whereby it is necessary for a person to know what part of the machinery is going to go wrong before it goes wrong, so that they may apply to the Revenue Commissioners for permission to import the spare parts free of duty. Nothing so Gilbertian could possibly be envisaged by any person engaged in business. I would like to ask the Minister for Finance to have that objection dealt with.
I feel that when these rules and regulations are being framed they ought not be framed by some ingenious official as a sort of obstacle race for business people. It does certainly appear to people engaged in business that the regulations are often made for no other apparent reason. If it has been found desirable in a period of 25 years to allow into Ireland free of duty things that are not manufactured here and that there is no intention to manufacture here, it should be feasible to continue to allow them in in future.
There is nothing about import in this. It deals with export only.
I am sorry if I was not in order. I was asked to mention about the export of cigarettes and to ask if the Minister could tighten the machinery adopted. There are many complaints along the Border about this practice, and the people along this side of the Border find it difficult to procure cigarettes. I was informed that this Bill dealt with imports and exports, so I apologise to the House for taking up the time of public business on the other matter.
Senator Douglas has put his finger on the matter to which most legal folk take exception, that is, the shifting of the onus where a person is charged with an offence. The shifting of onus is not so serious in this case as one would imagine from hearing that phrase from Senator Douglas. Section 3 of the 1945 Act sets out seven different matters that constitute an offence. It is really the same thing looked at vis-a-vis the different steps that would have to be taken to secure the desired result. The first is that the person exports the goods in contravention of any enactment, the second is any person who attempts to export, the third is anyone who brings or sends goods to any place for export, the fourth is ancillary, attempting to bring, the fifth is knowingly being concerned in dealing with goods the exportation of which is prohibited or restricted. The second last is keeping goods at any place for the purpose of facilitating their exportation in contravention of any regulation or enactment. The last is the usual ancillary to any statute setting up an offence and includes aiding, abetting or assisting anyone to do these things.
In respect of these things, there is certainly an onus shifted on to the accused person. Take the first one—any person who exports. If a person is charged with the offence and it is proved in the proceedings that the goods are goods the exportation of which is prohibited or restricted by such enactment or statutory instrument, and that the goods were on or about the said date exported, the person shall, until the contrary is proved, be presumed to have exported them. Only on those three things being proved—the export having been achieved and that that was contrary to the regulations and that the person had them in his custody within a reasonable time prior to exportation—he has the onus. It says that such person shall, until the contrary is proved, be presumed to have exported the goods in contravention of the enactment. That, I suggest, is about the most serious onus put on the accused person.
Take the next one—a person attempting on or about a particular date to export. Then the onus shifts, but only in the circumstances that it is proved in the proceedings that the goods are goods the exportation of which is prohibited or restricted and that the person on or about the said date attempted to export. There the onus is only that it is assumed that he attempted to export in contravention of the statute. That is not a very serious assumption, if you prove in the proceedings that the goods come within the restrictions and that he attempted to export them.
The others go down in much the same way. I do not say that the matters I have given are applicable to all the various sub-sections, but I submit that the most serious onus is the one in subsection (3) in relation to the offence of exporting.
In the Customs Act dealing with imports, the onus is shifting in exactly the same way. Senators will no doubt accept that there is a difference between illegal import and illegal export. In the case of illegal import, the goods are here and can be taken or seized here and if they are goods the importation of which is restricted or prohibited and if they are in somebody's possession, there is a clear case. In the case of export, unless some onus of this type here is put on the accused person it would be almost impossible to have the case proved. As long as the goods are inside the State, one cannot do anything, as a man may be hovering around the Border for weeks and you cannot do anything on suspicion. In those circumstances, the advantage is with the smuggler. It is said that time can mean business, but maybe time is his business and the customs cannot be expected to keep check on him every hour of the day.
It has to be remembered that this is not the first time there has been a shifting of onus, even in our own law. Sometimes the onus shifts over to the accused person, more often to the defendant in a civil action. It is well known in regard to the law that deals with adulteration of food, where there are circumstances that are peculiarly within the knowledge of the person charged with the offence. In civil actions, the onus often shifts to the defendant, where there are eight or nine ways of justifying what he has done and he has to say on which of these ways he is making his claim to have acted properly where the State claims he acted improperly.
This happens also in other cases. It is an offence under the criminal law for a person to be found with house-breaking implements, or instruments which could be used for house-breaking, in what is known as statutory night time, unless he discharges the onus in proving he had these "house-breaking implements" for an innocent purpose. Even in the case of a person found with his face blackened during statutory night time, there is an onus on him to explain why he was going about in that fashion and it is assumed that the disguise or blackening at that time was for some illegal purpose, until the contrary is established.
It is not so unusual to shift the onus. It is not so very serious here although it is objectionable. If Senators look up the piece of legislation, they will find that the particular onus established in each of these sub-sections is not a very serious onus for him to discharge. There is the further point which has been mentioned, that in dealing with illegal export the situation is different from that of illegal import, as the circumstances are entirely in favour of the smuggler.
Senator Ó Buachalla asked about smuggling being on the decrease. I am afraid I cannot say that that represents an accretion of virtue in our people: it only means that the field for smuggling has been somewhat narrowed by the fact that certain restrictions have been removed and there is not so much chance now of breaking the law. In addition, there is a stringent watch and the more efficient working which was made possible by this Act has made more difficult the task of many people who would like to smuggle and still have an opportunity; and to that extent we have brought it under control.
In regard to the usual result of prosecution, I would say, speaking very generally, that it is a fine and sometimes imprisonment. In cases where there are fines or imprisonment, there is nearly always an immediate appeal to the authorities who have a right of remission of penalties on the ground that the person was not acting for his own benefit but that his conduct was useful in the national interest. For instance, a man who smuggled in motor car tyres at a time when there was great need for them claimed that he was doing good for the country.
Regarding the cost of the customs service on the border, that is beyond my calculations at the moment.
Even an approximation?
I could get an approximation.
The value of the goods seized?
Is the Senator speaking of imports?
No, exports; we are not dealing with imports.
I am sure the statistics could be got approximately, but I could not give them at the moment. The serious ones were motor cars and gold. I could get some general statement of value of articles under those two headings and then some miscellaneous group. If the Senator thinks that would be of any advantage, I can have it calculated for him.
In view of the question of the cost of the Border, such a figure would be of certain value.
I would not like these two things brought too much into association. Even though it might be a very expensive matter and far out of any ordinary relationship with the goods that were passing either way, a customs service would have to be maintained along the Border. Otherwise there would be open trading and free trading between this and every country that would have access to the harbour of Belfast or any cross-Channel place.
As far as cigarettes are concerned, attempts are being made to have that tightened up. The chief reliance there has to be on the manufacturers of cigarettes here and I do know that they have a pretty good system whereby they pay special attention to complaints that come from those customers who rely upon traders in areas where there might be a temptation to send cigarettes across the Border. I do know that the manufacturers call for statements on any occasion on which a complaint is made by any customer in any of the towns along the Border where it is thought that the deprivation of the home customer is due to the fact that the shopkeeper has sent cigarettes across the Border. In addition, the customs officers keep their usual watch.
Question put and agreed to.
Agreed to take remaining stages to-day.
Bill put through Committee and reported without amendment, received for final consideration and passed.