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Seanad Éireann debate -
Wednesday, 10 Jun 1970

Vol. 68 No. 7

Merchandise Marks (No. 2) Bill, 1969: Committee Stage.

Section 1 agreed to.
Question proposed: "That section 2 stand part of the Bill".

Perhaps this is the section on which I should make the point that this Bill which does not give any civil right should give such right. Had I an opportunity of reading carefully the Minister's remarks I could have decided whether an amendment should be put down to this section. However, I had not this opportunity earlier and I made special arrangements last evening to collect the report.

When I made this particular point last week the Minister referred to the provision of the Sale of Goods Act as giving the necessary right which could be civilly enforced to any person who would suffer damage as a result of a breach of this Act. I would refer the Minister to the particular section— section 13—of the 1893 Sale of Goods Act which is relative to this matter. This Act provides that where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description. The decisions on that take in the matter of the quantity of goods so that if certain other sections of the Act were not availed of by the vendor, there would be civil protection for a person damaged as a result of a container not containing what it ought to contain in accordance with the Minister's Order but there is a provision, supplementary to the Act, in Part VI, which provides that where any right, duty or liability arises under a contract of sale by implication of law, it may be negatived or varied by express agreement or by the course of dealing between the parties, or by usage, such as to bind both parties to the contract. There is in fact a like provision in the Merchandise Marks Act, 1887, which is the Principal Act to which this is an amending Bill. The like provision of the Merchandise Marks Act, 1887 contains a saving in section 17 which provides:

On the sale or in the contract for the sale of any goods to which a trade mark, or mark, or trade description has been applied, the vendor shall be deemed to warrant that the mark is a genuine trade mark and not forged or falsely applied, or that the trade description is not a false trade description within the meaning of this Act, unless the contrary is expressed in some writing, signed by or on behalf of the vendor and delivered at the time of the sale of contract to and accepted by the vendee.

The commentary on this which I have from the standard textbook on this subject Kerly on Trade Marks, Eighth Edition, is that the saving at the end of the section is carefully expressed; that the statement required to prevent the implication of a warranty must be in writing, signed, delivered at the time of sale and accepted by the vendee. It is not clear what “accepted by the vendee” means. It can probably be construed to import at least that the vendee understood he was to get no warranty and that he completed the purchase on that footing.

I cannot see any objection to an amendment to this section which I would propose to introduce on Report Stage, if the Minister were not prepared to introduce such an amendment. As I said the last day I would prefer if he drafted such an amendment. This would be a provision giving civil rights to persons damaged by a breach of this worthwhile Act so far as it goes and should also contain a provision excluding the saving of the kind which is contained in the Principal Act and which is contained in the Sale of Goods Act and which being not excluded in the Sale of Goods Act is not a protection for the damaged person such as the Minister suggested might be available to him under the Sale of Goods Act, when he addressed the House on the Second Reading.

Senator FitzGerald has got me rather seriously bogged down on this because he has been quoting from sections there. My understanding of this, as I explained during the course of the Second Reading, was and is that the affected party, the purchaser, has the right of bringing civil action under the Sale of Goods Act. I gather from the Senator's observations on this at the present time that he feels there is a saving in an original Act, the 1887 Merchandise Marks Act, whereby the supplier and the vendor can protect himself if he issued some document at the time of sale.

I went into this during the course of my reply on the Second Stage. I conveyed that the case visualised by the Senator at that time was one where maybe an importer or a packer might be found to have sold an insufficiently filled package of goods to a retailer or a distributor. We are getting away from what is covered here—I mentioned this—that is that the purchaser of the retailed article has the right because I cannot visualise the normal retailer in the selling of the goods to the purchaser can ever arrive at a situation where he is issuing some type of document.

The Senator's reason for suggesting this amendment during the course of the Second Reading was from the point of view of protecting the retailer who would have bought from an importer or a manufacturer against the sort of consequential case which would involve him in difficulties arising from a subsequent complaint by the purchaser at the final retail end. I cannot visualise a situation whereby the middleman, in this case the retailer, could get himself seriously into trouble in this regard, because of the provision, as conveyed in another section of the Bill—this arose from an amendment which I accepted in the Dáil——

It is section 4, subsection (4).

——whereby it is sufficient defence for the retailer that he took all reasonable precautions and exercised all reasonable diligence to avoid the commission of such an offence.

I cannot see the necessity for the amendment at this stage. There is no particular reason why I should be terribly anxious to get the Report Stage today. If what the Senator is anxious for me to do is to look at all aspects of this in relation to difficulties, or the possibility of difficulties, I would be prepared to have a look at that particular section, together with what the Senator has in mind, between now and the Report Stage. If I felt it was necessary I should be quite willing to include an amendment on the Report Stage. If not, I would propose to give a better outline of my reasons for not accepting it.

I am grateful to the Minister for his reply. I referred to the Merchandise Marks Act and to the Sale of Goods Act because both have the same defect in that the provisions which give civil rights in these Acts contain also provisions which enable the vendors to deprive the buyers of these rights. I referred to the Merchandise Marks Act for that reason. I was primarily directing myself to the Minister's suggestion that anyone damaged by virtue of the failing to comply with the provisions of this Bill, when enacted, would be saved by the section in the Sale of Goods Act. I referred to it particularly because there is no saving in effect for anybody damaged because the practice would be when one comes to deal with any sizable order—and Senator Nash referred to it in a particular connection—that one is given something called a guarantee which is in effect, when studied carefully, a document which deprives one of his statutory rights which he would have had if he had not got the guarantee. This is, in effect, in the form of a document which is offered.

The Minister has advisers to tell him how this would operate in fact. I would have thought it would operate right along a chain. I imagine the retailer would not give any document which would deprive the purchaser of any rights he might have, if damaged. The quantities of any particular retail buyer would not be large anyhow. The retailer would possibly be in a position of being liable to his buyer and having no remedy against the wholesaler or manufacturer for whom the goods were packed. The manufacturer might not have any rights against the firm who packed the goods for him. One might be dealing with orders of a very substantial character. No civil remedy might be possible. Civil remedies are excellent because people are very attentive in looking after their own affairs. It is good to alert people to their rights and to give them rights to exercise and to protect themselves.

The merchandise marks code has been notorious in that it has not been enforced. The Minister has been advised to introduce this particular measure, which I think is a weights and measures measure, as a merchandise marks code. The history of that code is that it has not been enforced. It is desirable to give civilians the right to enforce it and to get their remedies. Obviously this is a wholly desirable Bill and is welcomed. I wish merely to improve it to this extent by this suggestion.

The Minister might explain the purposes of section 2 (6) and (7). Section 2 excludes people preparing goods for export from any provisions under this Bill and also allows those who intended to export to market goods packed in a manner not in accordance with this Bill if the Minister is satisfied of the authenticity of their case. In relation to subsection (7) there is a case to be made, if the Minister agrees, where the manufacturers would put those goods on the Irish market and would take some steps towards informing the general public, either by way of a notice inserted in the newspapers or otherwise, as to why they are doing this. I suppose it would be interesting to know the reasons behind subsection (6). In relation to line 35 of sub-paragraph (a) of subsection (1) might I suggest to the Minister that in any order to be made in the future there should be provision that either a weight or measure should be given both in the new system and in the existing one? If at this stage people were told there were so many grammes in a packet they might not be too clear as to how much it contained.

In connection with the Senator's first query with regard to subsections (6) and (7) let me explain first about subsection (6). I may make an order under this subsection that the regulations may not apply to goods exported from the State. This is rather a necessary subsection because goods manufactured in Ireland for export will be exempted from the requirements relating to the marking of quantities, and the name and address of packers as well as the requirements to mark the packets in standard quantities. If these marks differ from those applying in the export markets the cost to the Irish manufacturer could be quite seriously increased. In fact, it could transpire that packers might not be able to pack the goods in accordance with the regulations which could be operated in the country to which the goods were being exported.

The Senator in the second part of his remarks dealt with section 2 (1) specifying arrangements to be made. I take it that what he was referring to was the change-over to the metric system. Perhaps I might avoid answering that for the moment and say that if the regulations here were that the packets must be as they are at the present time and if an order were made specfying that the goods must be packed in 16-ounce containers this might not be appropriate to goods exported to France or Germany. This is the reason why provision is made under subsection (6) enabling the exporter not to be bound by the order applicable in the regulations here.

In regard to the second part of the Senator's query about the regulations in connection with weights and measrures and numbers, there is provision whereby there would be discussions before making any order with the affected parties with a view to trying to have general agreement and there will be consultation with the affected parties beforehand. This is one of the things which are in the transitional stage at the moment in the change over to decimalisation and the metric system. It will be worked out in such a way that the packer and manufacturer shall not be too seriously discommoded while at the same time giving effective protection for the consumer.

I do not know if my explanation as to the need for subsections (6) and (7) answers the questions raised by Senators. The effect of them is that regulations which I might make in relation to weights, measures and number might not be applicable in the destination country and might give rise to a situation whereby the packer or manufacturer here might have his expenses increased by having to remark or reset a consignment.

The object behind the Bill is to protect the consumers on this side I do not want to see the consumers in any country to which we export goods being fleeced or disappointed with our produce and I do not think the exclusion of items for export under this subsection will have that effect. It is a necessary subsection in relation to exporting firms.

The very first line of section 2 states in effect that the Minister is not obliged to make any specific order in relation to any specific set of goods; he may, if he so desires; whereas in section 6 it is stated "shall not". In other words, the power to exempt goods for the export market or otherwise does not rest with the Minister: the Minister or the Oireachtas have no choice in the matter. The goods in question will not have to be marked as will goods for sale on the home market.

To my mind, it might be better if it were left to the discretion of the Minister to decide whether particular goods intended for export should be marked in a particular way. The point of subsection (7) is that where a manufacturer had a relatively large consignment of goods ready for the export market and then found that his export market no longer existed or that the order was cancelled he could with the consent of the Minister redirect those goods to the home market. If that were so, that manufacturer would have goods going on to the Irish market which were not marked because the subsection did not allow the Minister or anybody else to see that the goods were marked. That is why I thought the Minister might have been given some discretion in the matter.

The taking jointly of subsections (6) and (7) probably created a certain amount of confusion in the Senator's mind. Subsection (7) is a provision which enables me as Minister to give a permit in respect of goods packed in containers intended for export, to allow them to be sold in the State. What is visualised here is the type of eventuality which might arise in the case of perishable goods which could not be exported, for example because of a shipping strike or a dock strike, circumstances which would be out of the control of the exporter.

As conveyed in subsection (6), my order shall not apply to goods for export. Subsection (7) is intended as a protection against the type of event which might then ensue when an urgent necessity might arise to dispose of those unmarked articles on the home market. That type of situation could arise in the event of goods being held up through one of the situations I envisaged. The manufacturer, exporter or owner of the goods might then be allowed to dispose of the articles here, especially if they were perishable articles. This is, as I have said, the long-term reason for the provision of this subsection.

I suggest it is highly unlikely, but one might come across circumstances in which a manufacturer, unscrupulous, allied with a Minister—I do not, for a moment, include the present Minister—might release on the home market goods which were not as large or which would not give as good value as the equivalent product packed for the home market. There could be a manufacturer, supposedly having a buyer from a foreign country, and that supposed buyer could supposedly say at the last moment he did not require the goods, and it could be agreed that the manufacturer could release the goods on the home market. They could then be placed on the market and although bearing a similarity to the properly packed goods would not be as good value to the Irish consumer, who would be misled in this way.

It is for that reason that I suggest subsection (6) is so slack as to allow a possible abuse by an unscrupulous producer operating under subsection (7). I still say the two subsections could be used by a manufacturer, if operating on a sufficiently large scale, to make unfair profit for himself.

I can see the point being made but I thought subsection (7) envisaged an unusual type of situation which, of course, is quite possible. In an effort to meet that situation this subsection was included. The likelihood of what the Senator suggests is a little too far-fetched from my point of view and from the point of view of my accepting it seriously. The suggestion of connivance of that nature in relation to it is not sufficient for me to be willing to give any sort of undertaking that I would look into it again to see if the provision could be amended, deleted or enlarged. In regard to subsection (6), it is understandable that I should not make regulations making it incumbent on exporters to put particular markings on their containers. The necessity for subsection (7) is justified from my point of view. I do not visualise the type of situation arising which the Senator posed.

I agree it is far-fetched but many far-fetched suggestions became realities in the past few weeks.

Question put and agreed to.

I move amendment No. 1:

Before subsection (2) to insert the following new subsection:—

"( ) The authorised officer shall be a person suitably qualified to undertake the powers and responsibilities vested in him under this Act."

I was encouraged to put down this amendment by the Minister's statement on the Second Stage in reply to a point I made in regard to who the authorised officer or officers might be. The Minister stated at column 307 of Vol. 68 of the Official Report:

That inspector would be an officer of my Department or of a local authority especially selected for the purpose of enforcing the legislation.

I then asked:

Would that officer have any special qualifications?

The Minister replied:

Not specifically... there would be a point of making use to a great extent of local authority officers who at present handle weights and measures.

The responsibilities under this Bill and under the more comprehensive Bill which the Minister has promised to bring in at an early date in connection with the whole complex question of goods offered for sale in packets is far too wide to be properly catered for by the members of the Garda Síochána who at present act as weights and measures officers for the local authorities. I would visualise that an authorised officer would be a person specifically trained for these duties, who, if necessary, would have to undergo a special training course. I know the Minister can directly appoint such officers but I hope the Minister will agree it would be much more desirable if the local authority appointed their own officers to carry out the provisions of this Bill. The persons concerned would be required to have expert knowledge of all types of containers and a very wide range of containers are covered by the Bill. "Container" is in fact an ominous word. An authorised officer would also have the right to enter into manufacturers' or packers' premises and to take samples and to examine books and, in fact, do a lot of other things that he will be authorised to do under the provisions of section 3. I feel this goes far beyond the responsibilities and duties of a weights and measures inspector.

The Minister should include in the Bill some qualification or some indication that the officer concerned will, in fact, be suitably qualified and experienced to carry out these very responsible and, in some cases, complex duties, having regard to the fact that in addition to the duties under this Bill he will have presumably even more important duties under the comprehensive legislation which the Minister has promised to bring in at the earliest opportunity.

I would ask the Minister to include this provision in the Bill. If he so desires, he could specify a qualification, possibly using different wording, in some other section of the Bill though it seems to me that this is the appropriate section in which to introduce it. I would ask the Minister to accept the amendment on the grounds I have mentioned.

I find myself in agreement with Senator Russell on this because manpower must be used to the best advantage. Tins and containers in a factory are usually turned out automatically on a machine not as individual items but by the hundred and by the thousand. Therefore, if one is wrong they are all wrong; if one is right they are all right. I visualise that the only circumstances in which a complaint like this would arise is if somebody, having bought an article in a shop, finds it is wrong and that person forthwith complains. The authorised officer then goes to the factory or to the shop and purchases a similar item. In many of these cases the individual who buys the item, whether he is the local weights and measures sergeant or otherwise, will not be capable of doing the analysis himself. If one takes tinned fruit, one must discriminate between the actual fruit and the juices. He will have to send it away to an expert for analysis. It will have to come to a Department in Dublin. This is just the same as in the case of the garda who calls to the creamery to find out whether milk is up to standard. All he can do is take a sample and send it away. If we are to have an expert in every county, in every corporation, in every town, to do all this expert work which is done by the Institute of Research and Standards or to some such body it would be a hopeless waste of manpower and in this country above all we must endeavour, in the expenditure of money, to ensure that we get the best value for it. I can see no reason whatever why the person who ordinarily takes samples of milk cannot do this as well and send it up to the Institute of Research and Standards or such other appropriate body for expert analysis because it is only the certificate of a top grade expert which will be accepted in court.

I share Senator Nash's view on this. I noticed that Senator Russell having outlined his reasons for the amendment suggested that the Minister might look at it from the point of view of finding some more suitable wording than "suitably qualified". The amendment reads:

The authorised officer shall be a person suitably qualified to undertake the powers and responsibilities vested in him under this Act.

This assumes that the authorised officer whom I would be appointing would not for some reason or other be suitably qualified. I feel that without having a definition of "suitably qualified officer" the amendment would not serve any useful purpose. The section itself sets out under (a), (b), (c), (d) and (e) the powers an authorised officer would have. The officer is empowered at (a) to enter premises at all reasonable times and carry out inspections, tests and measurements and remove containers. This is the only function for which any technical training would be required and as Senator Nash has said when it comes to going into any greater detail it is necessary to remove the containers or the item with which he would be finding fault to have it properly measured or examined to see if it would conform to the standard required by me under the order. In that case the officer need not carry out any test himself but would take the containers away. I would not visualise a situation in which anybody except a suitably qualified person would be appointed as an authorised officer and from the point of view of adding in by way of subsection the necessity that a person should be suitably qualified assumes that I as Minister might appoint somebody who would not be suitably qualified as an authorised officer and we could get bogged down on the question of what constitutes a suitably qualified person.

In addition to this, the purpose of the Bill is to protect the consumer, and already in the Dáil I accepted an amendment which, if you like, took a certain action. It is the one that has been referred to earlier, subsection (4) (b) of section 4, which to a certain extent took some of the teeth out of the Bill. By providing a type of platform whereby some defendant might arising from a prosecution for an offence use an amendment such as the Senator is proposing for inclusion here and go into a great deal of detail as to whether a particular officer who was responsible for the prosecution was a suitably qualified officer, this in its own way would take further teeth from this measure and could provide an additional basis for a clever defence of an offence in this regard. I do not think that the addition of this amendment would in any way make this section more helpful, and therefore I am not disposed to accept the amendment.

I support Senator Russell's amendment and I wish to mention a point arising out of Senator Nash's observations. If you look at subsection (3) you will find that the officer hereby authorised is to be given powers which relate not merely to the exercise of his functions under this Bill. Senator Nash's point with regard to that may indeed be a valid one with regard to the exercise of his powers under this Bill in so far as the goods are, I imagine, packed or prepacked in the way he describes so that if one is wrong they are all wrong, if one is right they are all right.

The section however gives the authorised officer powers of a much greater kind than merely the exercise of functions under this Bill. The section proposes to give him powers which are set out and are very extensive, under (a), (b), (c), (d) and (e) with regard to the exercise of his functions under the Merchandise Marks Acts, 1887 to 1931 which relate to these matters and which are set forth in the 1887 Act and the 1931 Act. The code is deficient, it is true, but nonetheless I would like the Minister to consider an amendment on Report Stage as to whether these powers are not too extensive that are related to the general matter of the Merchandise Marks Acts, 1887 to 1931, because the officer can do all these things—inspect and copy, take extracts from books, documents and records, and so on. At the moment he can do any of these things in relation to the other functions which he has under the Merchandise Marks code unless he gets a search warrant, but he does not have to get any warrant under this. The warrant is given if he can satisfy a justice by sworn information that there is reasonable cause to suspect a breach of the Act and that an offence has been committed. He is then entitled to do these things, which is much less than he is being empowered to do here without being required to put anything before anybody. I think that that is a point which has to be considered by Senator Nash.

Senator FitzGerald's point is quite valid, but with great respect to him I should like to reconsider it and see just exactly whether it is relevant to what this Bill proposes to do. The real purpose of the Bill is to ensure that if there is a container that container shall be labelled as to what is in it with regard to number, weight and so on, and that if it is so labelled the label must be accurate. That is really the purpose of the Bill, and if the label is not accurate somebody can go into court and the authorised officer can go into court and if the person is proved guilty there is an offence committed and the court imposes a penalty. No penalty can be imposed unless the court is satisfied that he is guilty. A person giving evidence can be cross-examined as to his capacity and his ability to give the evidence which he has given in court, and if he is not qualified and is not sufficiently capable then the court discounts his evidence. But if the subsection suggested by Senator FitzGerald were to go into this Bill the first thing the man will have to do in court when he turns up to give evidence is to prove his qualifications. He may be a graduate of chemistry and and he will still have to prove perhaps something else. He may be a graduate of physics and will still have to prove something else.

Now, by and large, nobody is guilty of an offence of course unless it is proved beyond all reasonable doubt. Nobody could have the slightest doubt about the qualifications of the person to go into court because his evidence would be only as to whether there are 20 items in a particular packet or container. The evidence is always weighed against the prosecution and in favour of the accused. Every single item must be proved, and if this subsection went into this Bill I cannot visualise any case almost without exception in which the accused would not be entitled to an acquittal no matter how guilty he might be.

Again, this will lead to expense. At the moment in these cases there is usually provision for a certificate from the State chemist or the Institute for Standards and Research or some such body from prima facie evidence. This is produced in court and you usually have a sample yourself and you can get your own chemist or physicist as the case may be to examine your own sample, and if you wish to challenge the State witness the can attend the court and give evidence and the State witness can be cross-examined, but if this subsection goes in I can visualise all sorts of difficulties. I can visualise also that it would be practically impossible to get a conviction.

The real purpose of the Bill is to ensure that when the ordinary John Citizen goes into a shop and buys something he gets what the label on the container sets out should be there. That is the real purpose of this Bill. It is not to leave loopholes for guilty persons to escape. They will have loopholes enough, and if they are not guilty they can prove their innocence. I would recommend to my colleagues that they should reconsider it in that light when I think that they would be disposed perhaps to agree with me.

Miss Bourke

I should like to oppose this amendment on the grounds that I do not think it meets the objection put forward by the proposer in that in stating that the authorised officer should be a person suitably qualified it could well be the situation that the Minister would be authorising in writing and he will determine up to what standard the person shall be qualified.

I think, however, that some of the remarks made today by Senator FitzGerald are very relevant. The powers given to an authorised officer under this section are very wide, and the court may be asked as to the method under which this can be enforced when the officer may require a person to in fact incriminate himself or commit an offence. This is not a general principle of the common law, that a person would be required to produce books, documents, records or to give under paragraph (d) of section 3 to the officer any information he may require in regard to any persons carrying on the activity, and under paragraph (e) to give to the officer any other information which the officer may reasonably require in regard to such activity.

Paragraph (e) requires:

such a person to give to the officer any other information which the officer may reasonably require in regard to such activity.

It is provided at the end that:

A person who obstructs or impedes an authorised officer in the exercise of a power or does not comply with a requirement under this section shall be deemed to contravene this section.

It seems to me that this is giving very wide powers to the authorised officer. Since it is laid down here that the officer should be suitably qualified without in any way setting out what is meant by that, presumably the Minister would be as good a judge as anybody else of such qualifications. I should prefer if an amendment were put down on Report Stage in relation to whether this ought to be a matter for a search warrant or that type of machinery rather than having authorisation in writing considering the implication of this in going against the principle of self-incrimination in so far as that a person may remain silent and have the presumption of innocence in his favour. Under this section a person may not refuse to disclose his books. This is a rather unusual principle.

While agreeing with a number of Senators who have spoken on this amendment, I would disagree with others. I was most impressed by the final point in the Minister's last intervention when he referred to the possible legal difficulties which an amendment like this might create in the courts if an action were taken under one of the sections of the Bill.

This point made by the Minister exposes the fundamental problem underlying both the section and the amendment we are now discussing. It seems to me that the fundamental question is whom exactly is this Bill intended to protect and, in particular, whom exactly is this section intended to protect. I believe that the bias of the Bill, slight though it is, is in favour of the consumer. I believe, also, that the bias of this particular section is in favour of the consumer but the bias of the whole Bill should be very much stronger in favour of consumer protection. For that reason, I am inclined to oppose the amendment because, as it stands, the amendment does either one of two things. In the first place, there is the possibility that, as the Minister has contended, it adds nothing to the substance of the Bill, in which case it is irrelevant. In the second place, it may take away from the rather scanty but still welcome element of consumer protection and reinforce the element of protection for the manufacturer. If this is the case, the amendment should be opposed.

As I remarked during the past 24 hours in another context and in another place, it is a truism that we in this country have more laws to protect property than we have laws to protect the people. This Bill, however limited in its effects, is a step in the right direction. For these reasons, while I oppose the amendment I would also express some criticism of what my colleague Senator Mary Bourke has said about the powers given to officers under the Bill. In the game of profit and loss in this acutely competitive society there cannot be too many powers given to representatives of the community to protect the consumer.

I find myself in sympathy with a good deal of what Senator Nash has said in relation to the difficulty of determination of the qualifications of a person who may be authorised to carry out these investigations. I do not agree that the naming of such a person by the Minister even after the Minister had received the expert advice of officials of his Department would be adequate because there may be required a considerable spread of expertise and the need for this may develop only in the course of the investigations. Therefore, the amendment as put down would be very difficult to operate.

I find myself in sympathy, also, with what Senator Mary Bourke has said about the amount of responsibility that would develop on this person under the section. As I see it, there are two things involved. First of all, there is the entering the premises and making limiting investigations and establishing a case. There is also concern with the obtaining of the necessary documents to prove the case for which the officer has, at the same time of his entry, procured prima facie evidence. I wonder if this could not be put into two separate sections. Is it fair to embody all this investigationary work in the one section? I am not very competent to discuss the legal implications but, as I see it, this section is rather cumbersome. It gives to an officer a tremendous amount of responsibility which should be taken in a much more deliberate way.

I would agree entirely with Senator Mary Bourke if the business circumstances of today were the same as were the business circumstances of 30, 40 or 50 years ago when the earlier Acts were passed and when everything was manufactured by hand and packed by hand. In today's circumstances if I were to pack a million items they would probably be put into packages of ten so that I would require 100,000 containers to pack those one million items. I can visualise that by having the slightest shortage in those 100,000 containers. I would stand to make a great profit at the expense of the consumer. One way of proving such wrong against me would be if my books could be inspected but if my goods could be inspected and it was found that instead of packing 100,000 containers I had packed only 99,900 it would make proof that much easier because, after all, what comes in must go out. I cannot visualise this happening in every case that would come before the courts but the power must be there for the authorised officer, if he so requires, to inspect my books and ascertain what raw material I had used because, by ascertaining that information, he can prove beyond doubt if I am cheating the public.

There is also power given to the officer to inspect my books to find out who exactly I am. As laid down in the Bill, he can:

require the person who carries on such activity and any person employed in connection therewith to produce to the officer any books, documents or records relating to such activity which are in that person's power or control and to give him such information as he may reasonably require in regard to any entries in such books, documents and records.

He can also require the person to give him any information he may require in regard to the persons carrying on such activity.

In these days of limited companies and, in particular, of holding companies—I look on holding companies as ones who hold the sack of loot while the police or the officer, as the case may be, is inspecting the others —there are so many loopholes for fraud with the formation of companies and firms that it is very important that in investigating a case of this nature, the authorisation, if so required, should be there. The fact he has the authority does not necessarily mean he has to exercise it.

I could give a practical instance in my own experience within the past 12 months where a very grave wrong was done to a client of mine involving a loss of thousands of pounds and I was not able to trace who owned the firm who committed that wrong. You could have a firm known as Jones Brothers and the real owners may be Paddy Murphy and John Ryan. Unless you can inspect their books you cannot possibly find out. Therefore, if the authorised officer finds an offence is committed there is no use in his knowing that unless he knows whom to prosecute. It is due to the change in circumstances, the change in manufacture, the change in business dealings, the multiplicity of companies and firms and the various loopholes that people have been thinking out from day to day and from year to year to use companies and firms to avoid their liability, that in my opinion it is necessary, as protective clauses, to include those subsections.

I hope the Senator will appreciate I am not just criticising her point of view for the sake of doing so. I know from practical experience the various loopholes which can be used and I know from practical experience that it is absolutely essential if you are going to trace a fraud in a company or firm in those days that every authority and every power must be given to be utilised, but only to be utilised, if necessary.

We would all agree that the purpose of the Bill is to protect the consumer as much as possible and in that regard there is no argument at all. The thing that concerns me, and this point has been brought out even by the Senators who opposed the form of my amendment, is that first of all you have an authorised officer who has been given very wide powers under this Bill and the previous Acts. It is necessary as Senator FitzGerald pointed out, to take into consideration previous Merchandise Acts. The Minister has indicated on Second Stage that such an officer is likely to be an officer at present employed under the Weights and Measures Act. Such officer would not necessarily be the proper person to carry out the provisions of this Bill.

I do not understand Senator Nash's point about the utilisation of manpower and naturally as a businessman I would be opposed to putting any extra expense on the local authority or the Exchequer. If it was for the better protection of the consumer I do not think this House or the Dáil would cavil at the additional expense of each local authority employing one extra person to carry out the provisions of this Bill if we thought that would make the Bill more effective. I am concerned at the case put forward that my amendment might very well have the opposite effect to that desired, in other words, that a clever lawyer might succeed in proving that the officer concerned was not suitably qualified to carry out certain provisions under this Bill and for that reason the case against the manufacturer and the importer might fall. I am not a lawyer but if that is so I would regard that as a valid point.

I am still concerned, and I do not think the Bill as at present drawn covers the point sufficiently, as to whether the wide and complex duties under this Bill can be properly dealt with by what the Minister visualises as an appointment by a local authority of a weights and measures officer. The duties go far beyond that and having regard to that and pending legislation the Minister should have another look at the section of the Bill dealing with the appointment of an authorised officer. We are giving him tremendous powers.

I appreciate, as Senator Nash says, that nowadays items for sale are not manufactured in dozens, they are manufactured in thousands. If we were satisfied that that mass production method was sufficient to guarantee protection of the consumer we should not be discussing this Bill at all. It is because we feel the present legislation is not sufficient and the consumers' rights are not sufficiently protected that we are discussing this Merchandise Marks Bill, 1970.

I consider the authorised officer is a key person in this whole Bill and for that reason the Minister should have another look at it. I presume, taking up Senator Nash's point, if it could be proved by a competent lawyer that the suitably qualified person was not suitably qualified the same argument could apply to an authorised officer such as a weights and measures inspector who in fact had no apparent qualifications, and possibly even on the grounds of education, for doing his duty. Some measures would need to be laid down to ensure the officer concerned was at least competent to carry out his duties. In saying that I do not wish to suggest the Minister would not appoint a person suitably qualified but, as I said when I was talking on this amendment earlier, I would hope this section of the Bill would be operated through the local authorities. I want to try to ensure in my amendment, although it may be wrongly worded and it may have the very opposite effect to that intended, is that the authorised officer would be competent to discharge what are very complex and onerous duties. That is the single purpose of this amendment. If the Minister can interpret my wishes, and indeed the points better made by other speakers here this afternoon, certainly I would be very happy to allow him to do it.

The amendment as moved by Senator Russell has been quite useful from the point of view of enabling such a discussion over the whole section. While I consider the discussion we have had confirms and, to a great extent, supports my view in relation to my opposition to the amendment as such, it has brought out some pretty useful points. Some of the earlier remarks by Senator FitzGerald, when he said he looked forward to the more comprehensive measures and the more comprehensive Bill he hopes I will be bringing forward for consumer protection, solidified me in trying to hold on to what we have in this section without, as I have already said, taking the teeth from it by enabling a sort of loophole amendment to be inserted.

Senator FitzGerald commented that this Bill in itself is not sufficiently protective. At the same time, Senator Miss Bourke suggested that under the various subsections of section 3 there are, if you like, too many powers being given to the authorised officer that it is proposed to appoint.

Let me say, in connection with this question of the powers of the proposed authorised officers, those same powers are at the present time held by officers of my Department under the Restrictive Trade Practices Act. They have exactly similar powers. As Senator Nash emphasised they are powers which it is necessary that the authorised officers should have.

Senator Horgan drew attention to the fact that the consumer is not as well protected as he might be. The Consumer's protection is not as well provided for under this Bill as the Senator would hope for. At the same time the protection I am trying to arrange for the consumer would be whittled away if I were to accept the amendment. I do not think there is a necessity to reduce the powers or even to question the appointment of authorised officers. It is quite normal to assume that with the powers which the authorised officers will of necessity have it will be necessary to ensure that the officers will get a certain amount of training. It is quite possible that Senator Russell has overemphasised my reply on the Second Stage when he said that it was likely that the same officers as are being used by local authorities will be used. This is what I am recorded as having said but I know what I would prefer to be recorded as having said and that is that they were liable to be the same officers.

During the course of the passage of this Bill through the Dáil the particular point of introducing amendments in order to envelop local authorities officers—possibly from the same point as the Senator has in mind of ensuring that the local authority could be brought in to have a direct interest in this was mentioned. With the powers I am endeavouring to take in this Bill, I want to have the type of qualified officer who can properly carry out the functions which I propose to assign to him.

In relation to subsection (3) (a) undoubtedly it will be necessary that the officer should have a certain amount of preliminary training. I propose to give him the power under this Bill for the protection of the consumer. I want to emphasise as solidly as I can that the whole object of the Bill is the protection of the consumer. If Senator Horgan finds that the bias has been just slightly in favour of the consumer I do not want to have that bias whittled away even a little. If Senator Russell and Senator Alexis FitzGerald were to insist on the acceptance of their amendment I cannot see that it would help the Bill in any way.

Amendment, by leave, withdrawn.
Question proposed: "That section 3 stand part of the Bill."

I do not know the nature of the researches which Senator Horgan has carried out to establish that there are more laws favouring property than favouring persons. It would take a long time to establish that proposition. I doubt that the Senator has been able to devote very much time to it. I made my position clear as to where I think the bias ought to lie. It should lie in favour of the consumer.

In regard to Senator Nash's point about the nature of the activity of packaging and pre-packaging goods, I am personally satisfied that it would seriously interfere with the enforcement of this Bill if, in fact, the authorised officer were denied any of the powers given to him to exercise his functions under this Bill. While I want to have a merchandise marks code which is adequate to protect the consumer, I should like to feel that it is in the context of this new code that we would consider the nature of the powers of enforcement which should be given to authorised persons. Subsection (3) of this section gives to this authorised officer not merely the power to enforce the section but also all these powers in relation to the merchandise marks code generally. Senator Nash made the point in relation to pre-packaging. If one reads subsection (a) the language is in the alternative. The language gives the authorised officer the right to

at all reasonable times enter premises at which any activity in connection with the packing of goods in containers or the manufacturing, processing, supplying, distributing or importing of goods is carried on and inspect the premises...

Therefore it is not limited merely to pre-packaging goods in containers. It deals with all types of manufacturing, processing, supplying and importation. It should be in the context of new legislation with enlarged powers and with greater rights for the consumer than are there at the moment, that we should consider giving persons who have to enforce this new code these additional functions which might be more extensive than were necessary in relation to small manufacturers who might be prejudiced by the subsection, people engaged in manufacturing, processing, supplying, distributing or importing. In making this point I would be in favour of giving notice of my intention to consider whether it would be proper to put down an amendment at the proper stage to delete the words "functions under the Merchandise Marks Act, 1887 to 1931" and to leave it at "exercise his or its functions under this Act". I must take this point on the section if I am to be in a position to put down an amendment on the Report Stage.

When the Senator is considering the possibility of putting down that amendment I should like to draw his attention to the fact that before he puts it down he must look into it from the point of view of the lack of authority for an authorised officer to do the things which are spelt out here being one of the weaknesses of the 1887 to 1931 Acts.

I would have to consider it in that context.

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

Miss Bourke

My point here is one of clarification. Subsection (1) states:

A person who contravenes or is deemed to contravene a provision of this Act or of an order under this Act shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding one hundred pounds or, at the discretion of the court, to imprisonment for a term not exceeding six months or both the fine and the imprisonment or, in the case of a person who contravenes a provision of an order aforesaid, on conviction or indictment to a fine not exceeding two thousand pounds or, at the discretion of the court, to imprisonment for a term not exceeding two years or to both the fine and the imprisonment.

I am not quite clear as to how the person will know whether he has committed an indictable or a summary offence. It is clear that any contravention of the Act can only be a summary offence, but a contravention of an order may be tried summarily or on indictment. This seems rather hard to interpret. I am commenting on the wording of the subsection.

Under the existing Act, the provision is that on conviction on indictment the person is liable to imprisonment with or without hard labour. Why are those useful words omitted from this section?

I frankly confess that this situation is very much in the hands of the parliamentary draftsman.

I am not entirely satisfied that I like the drafting of subsection (4) on which the Minister accepted an amendment in the Dáil. Could this be improved? For example, the existing Act states:

Having taken all reasonable precautions against committing an offence, he had at the time of the commission of the alleged offence——

That is rather important as is its continuation:

——no reason to suspect the genuineness of the trade description.

There is the alternative:

... otherwise he has acted innocently.

There is in the existing Act also the following provision:

... on demand made on behalf of the prosecutor, he gave all the information in his power with respect to the persons from whom he received the goods.

It might be possible to have another look at the subsection to see if it could be improved.

In relation to Senator Bourke's query, my understanding is that it provides for standard comparable penalties. On the question of summary and indictable offences, I am not in a position to express in detail the comparisons between the various types of offence. All I can do is to point out that the penalties prescribed are the comparative type of penalties which are imposed in other Acts for this type of offence, and if the Senator will bear with me I could be more explicit when presenting the Bill for Report Stage. In relation to Senator FitzGerald's observations on this section, I take it he was referring to subsection (4) (b).

On rereading the entire subsection I was uneasy.

I accepted an amendment in the Dáil and it seemed reasonable to me. I cannot see very much wrong with it. The Senator suggested alternative versions aiming at the same thing. One of the observations made by the Senator suggested that a good defence could be "I did not mean it". We altered the amendment, as moved in the Dáil, and I spoke specifically of making it too easy and too convenient to be able to offer such a plausible defence. I eventually accepted the proposition that a person accused could establish that he had taken all reasonable precautions and that that should be a just defence if he were able to establish it. In view of the fact that I have so many things to look at in relation to the Report Stage, I will wait to have a look at this subsection also.

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

Miss Bourke

I may be accused of being petty. I do not mean to be a nuisance. The suggestion I have to offer here is a constructive one. Subsection (1) states:

Proceedings in relation to an offence under this Act may be brought and prosecuted by the Minister or by the council of the county or the corporation of the county or other borough in which the offence is alleged to have been committed.

Referring back to what I was talking about—a conviction on indictment or summarily—if it is a prosecution on indictment the Attorney General would have to move on it. I do not think there is power in a local authority or in the Minister to do so.

My understanding is that an indictable offence would have to be brought at the instance of the Attorney General. This matter was raised in the Dáil by way of amendment. If there are any proceedings which are not within the compass of the local authority, I as Minister can take them.

Question put and agreed to.
Section 6 agreed to.
Question proposed: "That section 7 stand part of the Bill".

There is one small point which the Minister might consider. It is well known that before the Companies Act of 1963 people managed to direct companies without being directors of companies, by various means; but the 1963 Companies Act provided that the term "director" would include any person in accordance with whose directions the company were accustomed to act. This section might need the extended definition of "director" which is contained in only one section of the Companies Act and which therefore might not apply to this Bill at all. The question arises of who is really the person in accordance with whose direction the company is accustomed to act and who really is the person who should be prosecuted. The Minister should try to get him in by an appropriate amendment of section 7. I do not think that the definition of "director" in the Companies Act will get such a person in under this Bill. The Minister should consider that.

I shall certainly look into that.

Question put and agreed to.
Sections 8 and 9 agreed to.
Question proposed: "That section 10 stand part of the Bill."

Section 10 reads:

Where,... the Minister is of opinion that enforcement of the prohibition would cause undue hardship, the Minister may, at his discretion on application being duly made to him, grant a licence (in this section referred to as a licence) authorising the importation by the person named in the licence of those goods.

May I ask the Minister what situation he visualises here?

The Federation of Trade Associations and the Revenue Commissioners recommend this. The federation were concerned about the hardship caused to importers by detention by the customs of goods not meeting the requirements of the Bill and felt that importation should be permitted under licence subject to a condition requiring the importer to ensure compliance with the requirements. The Revenue Commissioners represented that the enforcement of an import prohibition under the Bill could be a source of serious delay and congestion at the ports and might involve hardship for importers acting in good faith. They suggested that a licensing power should be used to enable the proper marking to be applied after the goods had been cleared from customs but before being put on sale. The reason for this subsection is that goods being imported may be found not to be properly marked as provided by me by order and this is in order to have them released and got through port with the provision that they be properly marked afterwards.

Through no fault of the importer?

That is it. The importer may be bringing in stuff and may have assumed, having made an arrangement with a supplier from overseas, that certain things would have been done but finds that they arrive at port not having the required markings. This is included in order to have the discretion of granting a licence for them to be imported until such time as they are put in order prior to sale.

The same would apply to perishable goods?

Yes, that would hold more particularly in relation to perishable goods.

Senator Russell has raised a very important point. While I understand the Minister's intention in this, in regard to the importation of certain articles, particularly articles for remanufacture or components of articles that may be re-exported, I do not think it would be possible for the Department, unless they envisage some new kind of organisation, to allow these articles to be imported subject to re-inspection afterwards, because in many cases these articles find themselves on the domestic market and it is possible nowadays to vary trade descriptions of articles in order to bring them outside the import Orders that are in existence. Very often—I have personal experience of this—in regard to articles that are imported loosely under various trade descriptions the Department have not any machinery, unless they employ experts to do it, by which they can determine whether the descriptions given to the goods are accurate. There is evidence that a number of articles are being brought in which do not comply with the trade descriptions given to them. It would take experts to determine whether they do or not.

An expert authorised officer would do it, I suppose.

At the moment there is a certain amount of evasion going on. I would be a bit perturbed about this. Many of our new industries require imports of certain raw materials for manufacture and they find that a lot of goods are being imported in the finished state which do not comply with the trade description given to them. If a situation is permitted where somebody can get quite a large quantity of goods in without any definition as to their trade description and that has to be sorted out afterwards, how long afterwards will it be? How much of this material will find itself on the domestic market and how much of it will be available for export in sizeable consignments? Somebody would need to be on the spot straight away to determine it. If the Department are to clear a lot of this material at ports and leave the matter to subsequent investigation they will find, when they go to investigate it, that a lot of the material will not be there at all. I feel this is something the Minister should be careful about because I can see that this is a section that might be abused very considerably. The Minister can give an import licence for goods which have wrong trade descriptions and it has to be investigated afterwards.

He must be satisfied with the reasons given.

There are fellows who could produce reasons.

We are dealing in this with merchandise marks—the question of weight, measure and number on packaged goods for sale by a retailer and these are orders that would be made under this Bill. We are dealing with a different type of situation from the one the Senator envisages, as far as I know. This deals with import licences as relating to goods which are being brought in here by importers in a packed state and it deals with orders in relation to weight, measure or number or all three. I can see the problem the Senator has in mind. It is an administrative problem from the point of view of evasion of normal regulations. I do not think it is in fact related to this even though section 10 deals with import licences, because it deals with them in relation to goods about which orders under this Bill may have been made.

The difficulties as expressed by the Senator are ones which normally could be described as the normal run of administrative problems that would have to be tackled as they arose. I have no practical experience of the type of problem to which the Senator is referring, but I do not think that it arises under the particular subsection we are dealing with at the moment. This Bill has to do with the marking of packets and containers in relation to retail sales and I think that what the Senator has been speaking about is items being imported under one heading and being broken down and sold under some other heading.

The point I was making is that if you have a large consignment of any particular kind of goods and they come into the port of Dublin and a certificate of origin and an invoice are provided describing the kind of goods they are, if it eventually turns out that the certificate of origin and the invoices were not strictly in accordance with what has been brought in, by that time all these goods have got into the distributive channels and all the investigations you have to carry out will be nullified because the stuff is already sold.

This Bill has to do with the actual selling situation and it is drawn up from the point of view of consumer protection. In actual fact an offence is committed if the commodity is sold without being properly marked or without the specified weight that has been provided for in an order made by me under this Bill. If no order has been made by me under this Bill in relation to the particular type of article then it is not covered, but if the article is covered and if it does not conform to the standards set out in the order then the person who sells it at the point of retail sale will be guilty of an offence.

I do not want to labour this matter further, but I was visualising a situation where a cargo arrives in Dublin and the importers had to ask the Minister for permission to import it and under this Bill he would make an order permitting them to import, after the making of the order and after the goods had got into the distribution channels, there would not be much point in investigating it.

Licences to import would not be given unless the articles were marked or weighed or measured or counted, and the weight or quantity was printed on the package in conformity with the requirements which I laid down under an order. If they do not do that, the licence to import would not be forthcoming unless the importer was in a position to establish to me that there was a particular reason for those articles coming through. The question about the goods being taken away from the docks and distributed would not arise at all because of the prohibition against their importation if they do not conform to the standards that I will have set out.

I think that is all I can cover now. This section of the Bill exactly meets the requirements in so far as the goods cannot reach the distributive trade and cannot even be sold without me as Minister being satisfied that they have been marked properly, or if they have not been marked properly—and that is what this section here is all about—an offence will have been committed. I will have to be satisfied before I give a licence to allow them to be taken in by the agent or the importer and then marked before they are subsequently distributed.

If the Minister is satisfied then I am satisfied.

I have some sympathy with Senator Honan. We are dealing here with packaging. If a commodity is brought in in bulk and the importer packages that item here whether for consumption or for export—am I interpreting Senator Honan correctly?

The Minister has assured me that what I envisaged might happen but the point I was making was that I visualised a situation in which stuff was taken into Dublin port, whether in packets or in bulk, because somebody had made what appeared to be a strong case that it should be imported under licence, and after it had got into the distribution trade it was found that it was not in accordance with what the Minister intended, and by that time the stuff would not be there at all. The Minister has assured me and I am satisfied.

This section 10 deals with stuff coming in in packets or containers and has nothing to do with importations in bulk.

Surely if it is brought in in bulk and packaged here, and the person packaging it abuses the terms under which it was brought in, there is a problem?

The whole purpose of the Bill is to ensure that a person packaging any item that is produced here or imported will conform to the requirements that I will lay down in relation to weight, measurements, quantity or amount.

Not the quality?

Quantity, not quality. The whole purpose of this Bill relates to weight, measure or number. The question of quantity is covered, quality no.

Question put and agreed to.
Sections 11 to 14, inclusive, agreed to.
Title agreed to.
Bill reported without amendment.
Report Stage ordered for Wednesday, 17th June, 1970.