I move amendment No. 12:
In page 8, to delete lines 3 to 20 and substitute the following:
"(2F) Where an extended power of seizure is exercised, it shall be the duty of the officer—
(a) to carry out the determination or separation concerned as soon as practicable after its exercise, and in any event, within 3 months or such further period as is permitted by the Court, and
(b) as respect anything seized in exercise of the power found not to be material information or, as the case may be, anything separated from another thing in exercise of the power that is not material information, to return, as soon as practicable after that finding or separation, and in any event, within 7 days after the finding or separation, or such further period as is permitted by the Court, the thing to its owner or the person appearing to the officer to be lawfully entitled to the custody or possession of it.
(2G) Where an extended power of seizure is exercised and pending the determination or separation referred to in subsection (2F), the Court may give such directions concerning that which has been seized as the Court considers appropriate including, without prejudice to the generality of the foregoing, directions as to—
(a) the determination or separation, prior to the 3 month period referred to at subsection (2F), of all or part of that which has been seized,
(b) the return, prior to determination or separation, of all or part of that which has been seized, upon such terms as seem appropriate to the Court.".
The phrase "as far as is reasonably practicable" is dotted throughout legislation. There are as many interpretations of it as there are instances of it. I have serious concerns that the power granted in section 5 is weighted too much in favour of the Director of Corporate Enforcement. Most regulatory and law enforcement authorities have taken an extremely sluggish approach. The Minister said a company could be shut down for months on end if a significant amount of information needed to be seized. The effect of the foregoing sections would be to paralyse a company from which material was seized.
In most instances it should be possible for an officer to carry out an inspection and separation on a company's premises. The purpose of this amendment is to protect the legitimate rights of a company. There should be a requirement that the determination or separation referred to in subsection (2F) of the 1990 Act be carried out on the spot or, if that is not possible, within a fixed period. I suggest two to three months.
In most instances, that would be more than enough time to carry out the separation of documents and to return those documents not pertinent to the investigation. Once the separation of documents has been carried out one can begin indepth examination of the pertinent documents.
In addition to these requirements, there ought to be power to apply to the High Court for the immediate return of documentation in appropriate circumstances. Senator O'Toole mentioned earlier that this is already possible. Can the Minister confirm that this is the case and that application to the High Court would not be an onerous procedure for company directors?
The Minister spoke of the need to strike a balance. In this instance, the balance is weighted too much in favour of the Director of Corporate Enforcement. A period "as far as reasonably practicable" could stretch for months if not years. Allowing the director power to, effectively, shut down a company places too onerous a burden on company directors who, in the main, act in very good faith at all times.