I am grateful to the Minister for his exposition on the privileges which it is proposed to give to the United States authorities in respect of their employees in the country. The Minister said it is envisaged that these privileges will relate principally to the areas of income tax and customs examination on transfer of residence. Is it the examination that will be exempt or is it just the duties that will be exempt?
Air Navigation and Transport (Preinspection) Bill, 1986: Committee and Final Stages.
Sections 1 to 5, inclusive, agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."
Obviously, the payment of import charges under the transfer of residence provision.
Will the examination be exempt?
No, the payment of import charges under the transfer of residence provision. It is moving house, really.
I do not mind a person moving his goods and not paying duty on them but the Minister's original speech could be interpreted as if there would be no examination. I would find that unacceptable.
The phraseology may not have been quite precise.
Is there any indication of what additional privileges might be requested?
We have no indication at present but we felt it wise to say that discussions have not been completed in this respect but any privilege that would be granted would be subject to agreement by us. I cannot give any further details at this time.
If this is of a significant nature might it require the Minister coming back to one or other or both Houses of the Oireachtas?
If it was, it would not be acceptable by us. There is no obligation on us to agree to it.
Question put and agreed to.
Section 7 agreed to.
SECTION 8.
Question proposed: "That section 8 stand part of the Bill."
Would the Minister indicate why he is proposing to increase the fines from £20 to £1,000? Would he make a general statement to help us in our consideration?
On that point also, I am concerned that the Minister has merely increased the level of fine in respect of section 19 (3) of the 1950 Act to £250. This is a very serious statutory offence, the breach of which should, on summary conviction, command a fine greater than £250. This is the offence of a person being required by an authorised officer, acting under this section, to give his name and address and the person refusing to do so or giving a false or fictitious name and address. The fine imposed for this offence should be of the level of £1,000 which is the normal upper limit in respect of conviction in a court of summary jurisdiction.
This section updates the maximum level of fines prescribed under the Air Navigation and Transport Act, 1950 — there have been no changes for a long time — for certain offences committed at State airports in order to bring them into line with the penalties which may be imposed in respect of similar offences by the District Court. Obviously, they have hit a level which comes somewhere between the desires of Senator O'Leary and Senator Durcan and that must be fairly correct.
I did not say what my desire was.
The situation is that the fines have not been updated since 1950, when this level of fines was thought reasonable. As regards the £250 fine I understand that that is upgraded from £5.
That is not the point. If somebody gives a false, misleading or fictitious name the maximum fine is £250. That is an offence of a most serious nature when committed under the circumstances envisaged by section 19 (3) of the Air Navigation and Transport Act, 1950. I am disappointed that the level of fine for that kind of offence has not been increased to £1,000.
I understand that the actual level of fine was very much on the advice of the Attorney General but, of course, when a person faces litigation of that nature the fine is not the only penalty; there are enormous costs surrounding appearance in court nowadays, which is an extra penalty.
There is no argument against that.
It appears that the Government are doing everything possible to eliminate the profession to which I so lately arrived.
Aided and abetted by the junior Minister, of course.
My objection would not be to the increase to £250 or indeed beyond £250. That is a substantial fine in that context. If somebody assaults an authorised officer in the course of execution of his powers and duties he is liable to a fine of only £1,000 or a term of imprisonment not exceeding six months but, apparently is not liable to both. That probably was the fashion in 1950 and we are now following that fashion. It is a small penalty for a person who assaults an authorised officer in the course of his duties.
I do not want to pursue this point any further but section 50 of the Fisheries Act, 1980, increases the fine imposed for somebody who is apprehended by a fisheries officer and gives a false or misleading or fictitious address. The maximum fine under that Act, which increases the level of fines imposed by the Fisheries (Amendment) Act, 1962, is £500. In 1980, the Oireachtas, in its wisdom at that time, decided that somebody who gives misleading information in relation to his identity to an authorised fisheries officer can be fined £500. Six years later the fine, under the Air Navigation and Transport Bill, 1986, for a similar offence is half that which was imposed in 1980. We have had a level of inflation since then. Bearing that in mind it appears the Minister does not regard the type of offence created here as serious as was envisaged in 1980 in the context of the Fisheries Act.
While I agree that giving an incorrect name to an authorised officer can lead to a very serious breach of the law in this case, I do not think one could directly compare an offence under this Act with that under the fisheries legislation. All of these levels of fines and punishments have been thought out very carefully by the various law officers involved as well as by the Departments concerned. These were thought to be the correct levels. Usually we are blamed for being overzealous in this respect. I remember bringing a number of items from the Department of Communications through the other House — which might not have the sophisticated view of things that this House has — but on those occasions I was accused of being overzealous and seeking to introduce excessive penalties. I think that perhaps we have got the level right here. It is encouraging for me to hear some suggestion that perhaps they may be too high or too low. That gives me renewed confidence in the fact that we may have just got the level correct.
The Minister is obviously brain damaged after his experience today because I do not think anyone suggested that they were too low. The Minister is interpreting what has been said in a liberal fashion. I will not say anything more about it provided the Minister answers one question. How many meetings did the Minister have with his officials before deciding on this level of penalty?
That is under the Secrecy Act.
As the House may be aware, I am delighted to have the privilege of handling this for the Minister who is engaged in the other House. It is not necessary for a Minister to meet individuals. The Minister has very highly qualified officials to do this kind of work for him. I was extraordinarily impressed by the preparation of the very thorough briefing I received. I have no doubt that meetings with the Attorney General took place. The further one goes the more inclined I am to think that they may have just hit it on the nail.
I would like to add to the confusion because the Minister mentioned the Canals Bill. If my memory serves me right there is a fine of £1,000 for illegal swimming in a canal. This blows it sky high. However, subject to correction, I will leave it at that.
Question put and agreed to.
Sections 9 and 10 agreed to.
SCHEDULE.
Question proposed: "That the Schedule be the Schedule to the Bill."
In his gracious reply the Minister gave us an assurance about the four months trial period, but I am still worried as to who will decide whether the project continues after the trial period in Shannon. A Senator suggested earlier that if it were a success some bright boy might get the idea of moving it to Dublin. Senator O'Leary asked who were the "body"? Would it be Aer Rianta or some other "body"? Is it the Irish and American Governments or personnel of both Governments? Who will decide that it will continue for a test period of four months commencing on a date to be agreed by both Governments? Article III states:
If both Governments notify each other by diplomatic note that they wish preinspection to continue it shall recommence at a date agreed by both Governments and shall continue for so long as this Agreement shall remain in force.
Is there a weakness there? I have been listening to the learned lawyers on the other side. Is there a weakness there that someone could decide to opt out of Shannon after the four months, even if it were a complete and total success. My esteemed friends are talking about fines but I am still concerned — and I have to voice my concern here — that somebody might decide to opt out of Shannon after the four month trial period whether it was a success or not. What protection have the Government or the people of the region in such an event if this legislation goes through this House without ensuring that it cannot be moved out of Shannon? I am worried that the agreement does not provide the guarantee that if successful it should continue in Shannon after the four month period.
I see Senator Honan's difficulties and reservations but the fact is that all of this has to be done by agreement between the two Governments. It is for the two Governments to decide as to whether the facility is terminated or otherwise. It is only right to say that there is no such thing as an absolute guarantee. It might work like a dream with tremendous benefits but, for some other policy reason, one or other of the Governments might decide to opt out. There is no definitive guarantee that it continues. All we must do — and I think it is reasonable that we should do it — is accept the good faith of the US Government as we accept the good faith of our own Government in this case that there are benefits for them as well. Otherwise they would not have negotiated the agreements they have with Canada, Bermuda or the Bahamas where it is operating very successfully now. Obviously, it is in their interest also and they would not have gone this distance down the line unless they were hopeful that it would be a success. Remember there is an installation cost, although not very significant. During the preinspection period the extra cost is not being imposed as far as the officers are concerned. This will come into effect if we enter into a permanent arrangement. The short answer is that there is no absolute guarantee. It is a matter between the Governments. Both Governments must accept before it can continue because either one or other would have an absolute veto in the situation and could have the agreement scrapped if they so wished.
As regards transferring the same facility elsewhere, this is an enabling piece of legislation which would permit that. However, there are no other applicants other than Shannon at present. I gave the reasons for the logicality of setting up this installation at Shannon. It is likely that it would remain in that key position in future years because of the standard requirement by all Governments down the years that all transatlantic flights coming in and out of the country would stop at Shannon.
The more one listens to Ministers the more information one gets out of them. The Minister said that there was no applicant other than Shannon. Let me tell him that if he tried to move it out of Shannon that would be another day. I would like to ask the Minister if he is happy about Article IX which states:
United States citizens who are permanent employees of the Government of the United States, assigned to INS duties in Ireland under this Agreement shall not be amenable to the jurisdiction of the judicial or administrative authorities of Ireland in respect of acts performed by them in the exercise of their duty under this agreement.
Is the Minister happy about that?
This is a matter that came up earlier. A very limited immunity is afforded here, strictly for the particular officers in the performance of their duty. There are reasons why they should seek to have that. A good example is the possibility that someone who, at the preinspection stage at Shannon was refused entry to the United States, could possibly take an action against the officer for the loss of a contract or something of that nature. This is the kind of thing they seek to have themselves safeguarded against. But remember that once they are off duty, once they are not involved in the carrying out of their duty, they are subject to the law of this State exactly like everyone else. So far as Irish law is concerned INS officials are, in effect, designated persons under section 5 of the Bill, carrying out specified functions and subject to Irish law in every way like other residents except for immunities under section 6. That section deals with their official or professional activities. I gave you an example of one of the reasons for that. There are a number of other reasons. An example would be where they would be requested to give an explanation as to why they did not clear a person for entry to the US.
Question put and agreed to.
Title agreed to.
Bill reported without amendment, received for final consideration and passed.