If an individual who is sent into a company by the Minister or the director to gather information gets no co-operation from the relevant companies what form of prosecution would be envisaged?
Restrictive Practices (Amendment) Bill, 1987: Committee Stage (Resumed) and Final Stages.
Sections 22 and 23 agreed to.
SECTION 24.
Question proposed: "That section 24 stand part of the Bill."
It is an offence not to comply with any reasonable requests in the Bill. It would be an offence in that case not to comply.
Question put and agreed to.
Sections 25 to 31, inclusive, agreed to.
NEW SECTION.
I move amendment No. 8:
In page 16, before section 32, to insert a new section as follows:
"(a) Where a court imposes a fine or affirms or varies a fine imposed by another court for an offence referred to section 31 of which a person was convicted summarily, it may, at its discretion, on the application (made before the time of such imposition or affirmation) of any person who was summoned as a witness on behalf of the prosecution in the proceedings in which the fine was imposed and who suffered personal injury, loss or damage resulting, wholly or partly, from the offence provide by order for the payment of the amount of the fine or of a specified part of it as compensation in respect of the injury, loss or damage to the person making the application.
(b) An application shall not lie under paragraph (a) of this section in respect of any personal injury, loss or damage if proceedings claiming damages for the injury, loss or damage have been instituted in any court.
(c) Where the whole or part of a fine imposed under this section is paid to a person pursuant to this section and the person is awarded damages by a court in respect of the personal injury, loss or damage to which the payment relates, the payment shall be deemed to be in satisfaction of so much of the damages as is equal to the amount of the payment".
This amendment proposes to insert a new section before section 32 in relation to the powers of the court. It would, in effect, enable the court to have and exercise the same power as it currently exercises under section 17 of the Consumer Information Act, 1978, so that where the court was imposing a fine for an offence under the Act, at the discretion of the court part of a fine which was imposed could be paid over to a person who had suffered loss or damage resulting from the offence. It seems that this is roughly parallel to an offence under the Consumer Information Act. If a person has been injured by an unfair practice, restrictive practice, or unfair trading it should at least be considered that the court might have a similar power.
What is proposed in this amendment is that not only would there be the possibility for the director to bring prosecutions and for fines to be imposed for breaches of the various requirements, but the person who suffered loss or damage could also have part of the fine apportioned to him in compensation, as happens under the Consumer Information Act. I am interested to hear the views of the Minister in relation to this. It may be that the amendment will need some tidying up but, if the Minister is prepared to accept the principle of it, it would be a matter which would certainly be comparable to the jurisdiction under the Consumer Information Act.
I thank the Senator for her amendment. The amendment, as drafted applies to consumer legislation and not to restrictive practices. The amendment would provide that a court would have the power to direct that part or all of a fine imposed for any of the offences in respect of which the director has now been given power of prosecution should be paid to a person who, as the Senator says in her amendment, has suffered personal injury or was summonsed as a witness in the proceedings and suffered injury and made application to the court before the fine was imposed. The provision is similar to a provision, as the Senator rightly said, in the Consumer Information Act, 1978. The provision in the 1978 Act has been used on a number of occasions in prosecutions under that Act. In cases where holidays were mis-described in brochures, for example, part of the fines imposed on the tour operators were directed to be paid over to the aggrieved holidaymakers. I understand what the Senator has in mind. In cases where parts of a fine imposed on car salesmen arising from the sale of cars with, for example, false mileage readings, on occasions they were directed to be paid over to the aggrieved purchaser.
However, our difficulty with the amendment as it stands is that we take the view that it is very unlikely that, in the case of the offences in respect of which power of prosecution is being transferred to the director, a similar provision would be of any real benefit to the consumer for a number of reasons. There would be many cases — probably the majority — in which a consumer would not be involved. The prosecutions would follow surveys and monitorings by the director's office. Even in cases which involved a consumer, he or she would not necessarily be called as a witness in the case. The normal practice would be that the alleged offence would be investigated in full by the director using his authorised officers, his inspectors, and in court the evidence would be given not by the injured party but by the inspector.
In the case of most of the offences involved the question of personal injury, loss or damage probably would not arise. That must be our view of it at this stage. The offence could result, for instance, in the consumer not being given information which the legislation requires he or she should be given but its absence would not necessarily lead to any loss, for example, the absence of an indication of fibre content in a garment or the absence of a unit price on foodstuff. We do not envisage there being injured parties in the area we are dealing with because the inspectorate system would deal with it. For example, in the food labelling system the director would probably carry out a survey and if satisfied would institute proceedings for, say, incorrect labelling, wrong labelling, or no labelling. In that case it would be the inspector who would give evidence in the court. This is appropriate in the area to which it already applies but I am not convinced that it is appropriate in this legislation because it probably would not arise in most cases in that the inspector would give the evidence.
As I explained, the amendment was tabled deliberately as an adaptation from section 17 of the Consumer Information Act in order to have consideration by the Minister of whether it would be appropriate to have a somewhat similar provision. I accept that it would not be appropriate probably to tie it in to a person who was summoned as a witness for the reasons that the Minister has given, that the prosecutions would be using the information provided by an authorised officer, an inspector of the director. If the Minister assures the House that there will not be the same incidence of loss suffered by parties who can be identified, perhaps it is not appropriate. I am in favour of devices of this kind, where we are seeking to enforce legislation where not only is it appropriate that there would be criminal penalties in appropriate cases, but where also there would be an apportionment of part of the fine to an injured party. It was that principle that I was anxious to have discussed. If the Minister is clear that it is not appropriate and that there would not be identifiable injured parties in the circumstances of this legislation, that is the matter fully discussed so far as I am concerned. I will not press the matter any further.
I can give that assurance, that we would not expect any significant number of identifiable injured parties because of the structure. The principle which the Senator espouses is one that we could perhaps use more often in a general sense where it is appropriate to apply the proceedings from fines to individual injured parties. In this case it would be difficult because of the lack of indentifiable injured parties and it would be difficult to agree to apply the proposed amendment to restrictive practices legislation without a lot of detailed thought because of the present drafting and the structure of the Bill, applying as it does to consumer legislation as it is drafted. I have no problem with the broad principle the Senator is suggesting; but in this case it would be as well not to incorporate it.
Amendment, by leave, withdrawn.
Section 32 agreed to.
Sections 33 and 34 agreed to.
SECTION 35.
Government amendment No. 9:
In page 17, lines 3 to 10, to delete subsection (1) and to substitute the following subsection:
"(1) Subject to subsection (2), any person who sells or exposes for sale or offers for sale any goods by weight, measure or number shall be guilty of an offence if the quantity of goods sold, exposed for sale or offered for sale is less than that purported to be sold, exposed for sale or offered for sale or than corresponds with the price charged on the basis of——
(i) the total price to be paid for the goods;
(ii) the stated price per number or unit of measurement, as the case may be, used to determine the total price.".
This is to do with weights and measures provisions. Section 35 of the Bill creates an offence in relation to the sale of short weights or short measures. Examination of the provisions, subsequent to publication of the Bill, has shown that the wording of the provision could lead to difficulties in proving an offence, in that the present wording refers to any person who sells or purports to sell. We now consider that an alternative wording "any person who sells or exposes for sale or offers for sale" would be a more effective wording. The proposed amendment is simply this change or wording.
Amendment agreed to.
Government amendment No. 10:
In page 17, lines 18 to 24, to delete subsection (4) and to substitute the following subsections:
"(4) An inspector may at all reasonable times enter any place or premises where he has reasonable cause to believe that any goods are sold or exposed for sale or offered for sale by weight, measure or by number and may weight, measure, count or otherwise examine such goods for the purpose of ensuring compliance with this section.
(5) Any proceedings for a summary offence under this section may be brought and prosecuted by an inspector.
(6) In this section ‘an inspector' means an inspector appointed under——
(a) section 43 of the Weights and Measures Act, 1978; or
(b) section 81 (as amended by section 19 of the Weights and Measures Act, 1889) of the Weights and Measures Act, 1878.".
The Attorney General has advised that an offence under section 35 of the Bill would not be part of weights and measures legislation and that therefore, although prosecutions are to be brought by weights and measures inspectors — this provision is in section 35 (4) — the powers of entry of inspectors contained in the weights and measures legislation would not extend to prosecutions under section 35. This amendment, therefore, is thought to be necessary.
On that amendment, I would like clarification of what "at all reasonable times" is interpreted as being. I am not quite sure why the Minister has been advised that this formula must go in here and that it is not covered by the weights and measures legislation but I will take that as given. Since we are on a number of occasions in this Bill authorising inspectors to enter at all reasonable times I am interested to know what that is interpreted as.
I understand that that phrase "reasonable time" is in a number of pieces of legislation and that legislation has not actually defined it. Rather have we relied on, very often, the Minister's reply to give an indication of what that would be. Certainly, we would interpret it as meaning business hours.
Amendment agreed to.
Section 35, as amended, agreed to.
Section 36 agreed to.
FIRST SCHEDULE.
Question proposed: "That the First Schedule be the First Schedule to the Bill."
Under the Schedule the various statutory instruments listed there, the European Community's indication of prices of foodstuffs, the European Community's labelling presentation and advertising of foodstuffs, and the names and labelling of textile products, reinforces the point I was making earlier, that there will be a great deal of enforcement by the director, a very substantial amount of enforcement. The Minister, in answer to an earlier question referred to the fact that there has been an increase in staffing since 1983 and that there will be six personnel from the Examiner's office, but it seems that the effect of this Bill will be, as I said on Second Stage, to create a very significant major office in the land, the office of the director, and the director will not be able to fulfil the functions under the Act unless there is a very significant concentration of expert staff and resources for that purpose.
I have no difficulty at all with that concept. Indeed, that goes for all legislation. If one is going to legislate one must be sure that it is going to be effective. There is no point in legislating if one is not going to make available the resources necessary to implement the legislation. That is a totally academic approach. I assure the House that whatever resources are needed to make the director effective will be made available, obviously subject to the usual national budgetary constraints.
The Senator might support the view that an effective director with new powers, and the new Bill behind him or her, would take the view that persuasive action might achieve a lot more than actually going to the difficulties of prosecuting, that that kind of authority which the director will have will enable the director to achieve a lot of action and settle a lot of difficulties without having to take the prosecutions. I would rely very heavily on the directors persuasive powers, knowing that if he or she has to use the big stick it is there. Very often, when people know the big stick is there, they settle much quicker and are much more reasonable about it. I hope that the pressure on the director's office will be lessened by his or her use of persuasive powers to deal with matters, by dealing with them immediately rather than by going into court unnecessarily. At present the Minister is enforcing these regulations and this is not a new function. The function is being transferred from the Minister to the director. I assure the House that the resources necessary will be there, and I will rely heavily on the director's powers of persuasion knowing that he has the ultimate resources if he needs them.
I take the point that the way in which this Bill, when enacted, is enforced and implemented depends largely on the approach and the resources of the director. I am concerned because I have seen other legislation, for example the area of equality legislation, where there are a number of provisions which have not been brought into full effect because the resources to do so do not exist.
The Bill contains a lot of enforcement apart from persuasion. The Schedule we are dealing with relates to summary prosecutions. I go a long way with the Minister. I do not think there should be unnecessary prosecutions but much of the thrust of this Bill is prohibiting and creating penalities and requiring and creating penalties for omission or failure to comply and either creating new offences for enforcement by the Minister or, as the Schedule does, transferring into his jurisdiction the monitoring and enforcement of various enactments, including European Communities enactments. Unless there are the personnel and the resources to do that, we will have passed a rather technical Bill portions of which will not come into effect. That would be regrettable. I welcome the Minister's assurance that he intends that the Bill will have full force and effect.
Question put and agreed to.
SECOND SCHEDULE.
Amendment No. 11 was discussed with amendment No. 1.
Government amendment No. 11:
In page 18, Part I, to delete "No. 11 of 1972 Restrictive Practices Act, 1972 Section 1 (definition of service') paragraphs (a) to (g).".
Amendment agreed to.
Amendment No. 12 was discussed with amendment No. 1.
Government amendment No. 12:
In page 18, Part I, to delete No. 17 of 1987 Mergers, Takeovers and Monopolies (Control) Act, 1978 Paragraphs (iv) to (viii) of the definition of ‘service' in Section 1 (1).".
Amendment agreed to.
Amendment No. 14 is consequential on amendment No. 13 and they are to be discussed together.
Government amendment No. 13:
In page 18, Part I, in the third column, to delete "Section 52 (1)" and to insert "Sections 48, 49 and 52 (1).".
Amendment No. 13 deals with the Postal and Telecommunications Service Act and the P and T Users Council. As a consequence of the extension of the remit of the Ombudsman there exists a significant risk of duplication of effort in the investigation of complaints by the Ombudsman and the users council. Both councils expressed concern about this risk in their annual reports. In the circumstances the Government decided to abolish both users councils. Amendment No. 14 extends the long title of the Bill.
Is it purely a consequential amendment? I was not aware that there was an amendment No. 14.
It is consequential. It just adds in The Postal and Telecommunications Services Act, 1983, to the title. It extends the title of the Bill.
Amendment agreed to.
Second Schedule, as amended, agreed to.
TITLE.
Government amendment No. 14:
In page 4, line 9, to delete "AND" and to substitute "THE POSTAL AND TELECOMMUNICATIONS SERVICES ACT, 1983 AND"
Amendment agreed to.
In accordance with Standing Order No. 88, I have to report specifically to the House that the title as amended reads as follows: An Act to amend and extend the Restrictive Practices Act, 1972, the Mergers, Take-Overs and Monopolies (Control) Act, 1978, the Prices Act, 1958, the Consumer Information Act, 1978, the Merchandise Marks Acts, 1887 to 1970, The Postal and Telecommunications Services Act, 1983, and the Sale of Goods and Supply of Services Act, 1980, to make provision in respect of short weight and short measure and to make other provisions in relation to the matters aforesaid.
Title, as amended, agreed to.
Bill reported with amendments, received for final consideration and passed.