This is a drafting amendment which I hope meets an amendment put down by Senator FitzGerald on Committee Stage. It ensures that the definition of the word "produced" includes any process in the manufacture of goods. This also links up with the amendment which the House passed on Committee Stage to section 21 (2) relating to the country of origin.
Imposition of Duties (Dumping and Subsidies) Bill, 1967: Report and Final Stages.
Government amendment No. 1:
In page 3, line 5, before "and" where it secondly occurs to insert "in whole or in part".
It meets my point in a neat and simple manner with which we should be more than happy.
Amendment agreed to.
An Leas-Chathaoirleach
Amendments Nos. 2 and 3 may be discussed together.
Government amendment No. 2:
In page 3, section 1, between lines 13 and 14, to insert the following subsection:
"(3) References in this Act to the country from which goods are exported are, in the case of goods exported to the State, references to the country from which they were consigned to the State and goods which in course of consignment from any country to the State pass through or are transhipped in any third country shall not on that account be regarded for the purposes of this Act as having been exported from that third country."
This relates to a point raised on Committee Stage as to the original draft where the phrase was used "or goods exported from any country". It is generally agreed that this was not very clear and this amendment is designed to clarify the position. As well, we have added a definition of "country from which the goods are exported", a matter we discussed on the last occasion. Primarily the amendment is designed to clarify what is involved and I think it does so.
I think the points made at that time are met by this amendment. I do not think there is any problem about it and we accept it.
Amendment agreed to.
An Leas-Chathaoirleach
Amendments Nos. 3 and 4 may be taken together.
Government amendment No. 3:
In page 5, to delete lines 14 to 24 and substitute:
"dumped, and
(ii)the Commission considers it probable that the goods to which the request relates have been or are being dumped and that the dumping was or is injurious dumping
or
(b)the Minister considers it probable that any goods have been or are being dumped, that the dumping was or is injurious dumping and that there are exceptional circumstances which warrant a request by him to the Commission to investigate whether those goods have been or are being dumped, and the Minister so requests,".
This also arises out of a discussion we had on Committee Stage when I said I proposed to have a look at this to see if we could not improve the subsection. The main point raised by Senator FitzGerald in that discussion, and one with which I was inclined to agree, was that on the face of it the Bill, as drafted, appeared to suggest that before an investigation could take place, the Commission, or in other cases the Minister, would have to be convinced that there had been dumping which, of course, was defeating the object. That was not what was intended but I agree that one might have taken that interpretation out of it. Substituting the words "considers it probable" meets the point made in this regard. It also has the effect of providing that in the case of a reference by the Minister to the Commission you will not have the situation where the Commission is reviewing the Minister's decision as to whether there should be an investigation in the case of the matter being referred to the Commission by the Minister. The Commission "shall" carry out an investigation. In the other case the Commission "may". I think both points which were raised in this connection are concerned in this amendment.
Frankly, I am not quite happy with this amendment. I must plead guilty in a sense to negligence because I proposed putting down an amendment myself but foolishly waited to see the Government amendment and waited too long. I should, of course, have put my amendment down and then I could have withdrawn it if it were entirely unsatisfactory. Therefore, in a sense I am debarred from objecting to the form of this amendment but I should like to comment that while it may be said to improve the position it does not really get over the difficulty that the Commission is expressing a view on the case which it then has to consider in a judicial capacity. I thought from the discussion the last day that the solution that would emerge was the one that I would have put down myself. In fact, I did write it down at the bottom of a page of the Bill with wording along the lines "in the view of the Commission there exists prima facie evidence that the goods have been dumped”.
I think there is a difference here. The statement here requires the Commission to make a judgment as to whether the goods have been dumped and to make a judgment as to the probability of that event which is judgment concerning an actual dumping of the goods. It is not a firm judgment: it is a provisional judgment I admit. To that extent it is better than the previous wording which involved the Commission "being of opinion that the goods had been dumped" but it still involves their making up their minds and reaching a conclusion of some kind on the issue. I do not think the Commission should be put in the position of having to express a view on the issue. The wording I had in mind involves a different thing altogether. It involves the Commission expressing a view that there was prima facie evidence in the matter. That is quite different. They are not really expressing a view on the merits of the case. They are expressing a view that evidence has been put forward which prima facie suggests that the goods may have been dumped. I think one can legitimately permit a situation in which the Commission would express a view on prima facie evidence of dumping without committing them to the same degree on the merits of the case itself, whereas in this instance they are expressing an opinion on the issue. I wonder whether the Minister would reconsider this and consider changing the wording to: “The Commission considers that there is prima facie evidence . . .”
In the case of the Minister it is less important. I am not so worried in that case. It does not matter very much and it is fair enough in the Minister's case that he should consider that the goods probably have been dumped. In the case of the second amendment, page five, line 28, again it is a case of the Minister and, therefore, there is not any problem. The only suggestion I would make to the Minister is that he changes the words: "considers it probable" in the beginning of amendment No. 3 to: "considers that prima facie evidence exists. . . ” or “that there is prima facie evidence. . . ” I wonder if he would consider this. I am happy to leave the wording in the other case where the Minister is at stake and not the Commission.
Senator FitzGerald will, I am sure, recollect that when we were discussing this on Committee Stage I actually used the analogy of the hearing by a district justice of depositions in a criminal charge as being analogous in a way to this. He decides whether or not there is prima facie evidence. For that reason I was myself inclined to the use of the phrase “prima facie evidence” but I am advised by the parliamentary draftsman that there are technical difficulties in introducing that phrase, that it would introduce certain connotations which would be inappropriate in this case. The advice available to me is that the original wording meets the point we had in mind but that in order to make it clearer the phrasing here “considers it probable” is as far as we can put it without importing certain legal things by the use of the phrase “prima facie evidence”. On the basis of this, this is the best I can do in the way of amendment and I do not think I could consider changing it.
Amendment agreed to.
Government amendment No. 4:
In page 5, line 28, to delete "is of opinion" and substitute "considers it probable".
Amendment agreed to.
Government amendment No. 5:
In page 12, line 36, to delete "are goods exported from any country" and substitute "to determine the country from which the goods were exported".
Amendment agreed to.
Bill received for final consideration.
Question proposed: "That the Bill do now pass."
I should just like to say a few words on the concluding Stage of the Bill. First of all. I should like to repeat that this is a very useful Bill. It has taken a long time to get it to this point but I think that the care which has gone into it has been repaid in a Bill which will give the kind of protection that Irish industry will need with tariffs being reduced and at the same time conforming to the international obligations we have which are quite tricky and to conform with which is quite a difficult task. I think it is a good Bill now. The only thing which concerns one is this question of the 1980 date but we were precluded from discussing that. I am sorry I did not ask for clarification of that ruling because I cannot understand the reason for it or why it should be regarded as a possible charge on the Exchequer. However, it is a bit too late now to bring that up.
An Leas-Chathaoirleach
I do not think that was the reason.
In that case my recollection is at fault. Apart from that and one or two matters which we raised in the debate and which the Minister did not fully accept, it is a good Bill. I feel it is a Bill which we have improved in this House. There have been more changes made here than there were in the Dáil. I think there were 14 amendments altogether. I feel it is a better Bill for having proceeded through this House. There are Bills which are handled better in the Seanad and there are Bills which are handled better in the Dáil. I think this is one of the former. We are particularly grateful to the Minister for the consideration he has given to the amendments and his open mind on almost all of them.
I should like to raise one point which should have been raised much earlier I suppose.
An Leas-Chathaoirleach
I trust it is in the Bill.
Yes, I shall stick very closely to the Bill. Section 10 subsection (1) paragraph (a) states that the Commission may "request witnesses other than the Revenue Commissioners and their officers" to attend before it. Paragraph (b) gives it the power to "examine the witnesses attending before it", and paragraph (c) says it may "request any such witness to produce to the Commission any document in his power or control".
When Senator FitzGerald was raising difficulties about this business of witnesses this point was overlooked I think because the Minister's argument was that he did not meet the Revenue Commissioners or their officers before the Commission because their documents would be available and the documents in the power of the Revenue Commissioners would be the only thing in which the Commission would be interested. As I read section 10, subsection (1) paragraph (c) which concerns documents it is limited to documents in the power of any such witness, that is, a witness under (a) or (b).
Under (a) the Revenue Commissioners may not be witnesses and under (b) the reference is to witnesses before it. So the Commission may not request the Revenue Commissioners to attend and, therefore, they may not examine them. As (c) refers to such witnesses in (a) and (b) or (3) the documents under the control of the Revenue Commissioners do not appear to be in the power of the Commission to request. It may be, of course, that this sort of thing would be done informally and one can well understand as between one Department of State and another this informality may operate quite well but this is not a Department of State.
This is a Commission and whether a Commission which is not yet set up would feel itself in a position that it might informally approach the Revenue Commissioners and say: "We would like to have certain documents" and whether the Revenue Commissioners would say: "Show us the power to ask for those", I do not know but I think it is a weakness that the Revenue Commissioners being debarred under (a) are assumed to be amenable to the Commission for the production of documents. As to the Minister's argument on an earlier stage when there is this limitation such witnesses obviously refer to witnesses under (a) or (b).
I think Senator Sheldon's interpretation of subsection (1) is probably correct but I also think he has overlooked the provision of subsection (3) which specifically provides as follows:
The Commission may request the Revenue Commissioners to furnish to it such particulars of information furnished to them in documents for customs purposes as are necessary for the performance of its functions and the Revenue Commissioners shall comply with a request under this subsection.
I am satisfied that the subsection covers the point which Senator Sheldon has in mind and that under it the documentary evidence which the Commission requires from the Revenue Commissioners will be available to it. The Commission can request it and when requested the Revenue Commissioners would comply with such request. If the subsection were not there, I think Senator Sheldon's point would be a valid one and one we would have to take account of but, having regard to the evidence of subsection (1), I think the point he is making is covered.
In relation to customs documents.
That would be the only kind of information the Revenue Commissioners would have. They would have factual information based on customs documents in their possession. As I said on a previous occasion, they are not necessarily confined to the particular goods in question. They might have reference to similar goods imported at different times in order to arrive at comparative prices.
I agree with Senator FitzGerald that the Bill has been improved as a result of the discussion in this House and I am grateful to the Seanad for the discussion which has taken place and the improvement which has been effected in the Bill as a result.
Question put and agreed to.