Seanad Éireann debate -
Wednesday, 5 Dec 1979

Vol. 93 No. 5

Private Business. - Occasional Trading Bill, 1979: Report and Final Stages.

Mr. Staunton

I move amendment No. 1:

In page 4, line 37, to delete "satisfied" and substitute "of opinion".

Senator Cooney is absent due to the death this morning of his father-in-law. I dealt with these matters two weeks ago and I am dealing with them now. As I understand it, it is the intention of the Minister to offer some compromise in relation to Senator Cooney's amendment. If she could enlighten us in that regard. I should be glad to reply. In the context of moving Senator Cooney's amendment, I understood that there was a counter-amendment by the Government, which I should like to hear in detail.

Minister of State at the Department of Industry, Commerce and Energy (Mrs. Geoghegan-Quinn)

I have no such counter-amendment. I made a commitment to Senator Cooney last week—based on the fact that he mentioned the basis for his amendment here today—to go back to the parliamentary draftsman and to our legal advisers to ensure that Senator Cooney's point about the substitution of "of opinion" for "satisfied" justified him in making the case here last week. The parliamentary draftsman advises me that the word "satisfied" ensures greater protection for the trader than the words "of opinion". The Minister must have consultations with his advisers to ensure that he is satisfied, whereas if the words "of opinion" were used he need not necessarily be absolutely sure before he makes a decision—the burden of proof is less. On that basis I do not intend to accept the amendment.

Mr. Staunton

I should like to point out to the Minister that Senator Cooney's amendment did not relate to whether or not the word "satisfied" provided greater or lesser protection for the trader. What he raised was a constitutional issue. I shall quote very briefly from his remarks:

The words "is satisfied", in a similar context in the 1939 Act were held to be unconstitutional in that the Minister in establishing satisfaction was, in effect, exercising a judicial function. An amending Act was introduced in 1940 changing the words from "is satisfied" to "is of opinion".

He went on to state that the Bill was inviting the Minister to be satisfied as to whether or not an offence is being committed. It is a constitutional issue, not an issue as to whether or not the wording satisfies the details of the trading position, and it is in relation to a constitutional issue that the Minister should reply.

Mrs. Geoghegan-Quinn

I thank the Senator for giving me the opportunity of replying to the remarks which were made by Senator Cooney here last week. The parliamentary draftsman has advised me that the constitutionality of the 1940 Act did not turn on the substitution of "of opinion" for "satisfied". This matter of the constitutionality of the 1940 Act was not referred to in the Supreme Court decision and it did not give the Minister for Justice a judicial function. The parliamentary draftsman is quite happy that the Supreme Court would not have found that "satisfied" is unconstitutional. The Minister could safely be of opinion where he is somewhat less sure of his grounds than being completely satisfied. The taking of action by the Minister, where he is either satisfied or of opinion, does not entail the administration of justice; it is an administrative decision. The draftsman explained that the 1939 Act came before the High Court by way of a habeas corpus case taken by an internee. The court decided that the part of the Act under which the internee was arrested and taken into custody was unconstitutional and the internee was released.

Mr. Staunton

Is the Minister, in effect, assuring this House that in her view there is not a constitutional issue in regard to this matter of wording? If we receive that assurance we shall not press the amendment.

Mrs. Geoghegan-Quinn

Yes, I am.

Amendment, by leave, withdrawn.

Government amendment No. 2:

In page 5, line 44, to delete "or (2)" and to substitute ", (2) or (3)".

Mrs. Geoghegan-Quinn

Section 6 (4) states that:

A person who contravenes subsection (1) or (2) of this section shall be guilty of an offence.

Contravention of subsection (3) is not stated to be an offence. The Senator said he did not see the need for section 6 (3) as forgery is already a criminal offence under the Forgery Act. Strictly speaking, Senator Cooney was quite right. We could do without section 6 (3) but I am advised that it would be preferable to spell out, in the Occasional Trading Bill, that forgery of a permit is an offence. The mere act of forgery, irrespective of the outcome, would attract the penalty prescribed in section 9 (4) of the Occasional Trading Bill. For a prosecution to be successful under the Forgery Act, it would be necessary to prove that the permit was forged with the intention of deceiving or defrauding and such proofs would seldom be easy. It is better that we ensure that there is no confusion arising out of this subsection and that we make it an offence, in line with the other two subsections.

Mr. Staunton

On this amendment, I find myself in disagreement with the Minister, because the Minister has admitted that there is not a necessity for this subsection. It is untidy draftsmanship in the sense that if it is unnecessary it is in effect superfluous, and why pad legislation with more words than are necessary?

Mrs. Geoghegan-Quinn

I explained, in the latter part of my remarks, the reason why I felt it should be left there. For a prosecution to be successful under the Forgeries Act, it would be necessary to prove that the permit was forged with the intention—and I am putting the accent on "intention"—of deceiving or defrauding. I am told that it is often very difficult to prove that the intention of deceiving or defrauding is there, and to ensure that this difficulty of prosecution does not arise under this legislation, it is better to make this subsection an offence in its own right, under this Bill.

Mr. Staunton

Senator Cooney also made the point that it would be tidier, in subsection (4), to delete "or (2)" and substitute "(2)" or "(3)", if the Minister is insisting on retaining subsection (3). I am talking about page 5, line 44.

Mrs Geoghegan-Quinn

Subsection (1), (2) or (3).

Mr. Staunton

Would it not be more logical if the Minister insists on retaining subsection (3) to have in subsection (4), (1), (2) or (3)?

Mrs. Geoghegan-Quinn

That is the Government amendment.

Amendment agreed to.

Agreed to take remaining Stage today.

Bill, as amended, received for final consideration and passed.