I move amendment No. 17:
In page 52, between lines 35 and 36, to insert the following:
“Investigations and administrative penalties
73. The Act of 1993 is amended by the insertion of the following:
“63G. (1) For the purposes of ensuring compliance with air carrier operating licence obligations (which is deemed for these purposes to include an air operator certificate) and compliance with any other
obligation of any air carrier the Irish Aviation Authority may cause such investigation as it thinks fit to be carried out.
(2) The Irish Aviation Authority may, for the purposes of subsection (1), direct one or more authorised officers—
(a) to carry out the investigation, and
(b) to submit to the Irish Aviation Authority an investigation report following the completion of the investigation.
(3) The Irish Aviation Authority may define the scope and terms of the investigation to be carried out, whether as respects the matters or the period to which it is to extend or otherwise, and may, in particular, limit the investigation to matters connected with particular circumstances.
(4) Where more than one authorised officer has been directed to carry out an investigation, the investigation report shall be prepared jointly by the authorised officers so directed and this section and sections 63H to 63J shall, with all necessary modifications, be construed accordingly. The Irish Aviation Authority may designate one authorised officer as the principal investigator. Any reference to an officer is a reference to one or more officers as authorised.
(5) As soon as is practicable after being appointed to carry out an investigation, the authorised officer shall—
(a) give the air carrier concerned notice in writing—
(i) where the examination concerned is being carried out in respect of a complaint, setting out the particulars of the complaint concerned, or
(ii) where the examination is being carried out of the Irish Aviation Authority’s own volition, setting out the matters to which the investigation relates,
(b) afford to the air carrier an opportunity to respond to the notice under paragraph (a) within seven days from the date on which the notice was given (or such further period not exceeding 28 days as the authorised officer allows).
63H. (1) An authorised officer who has been directed under section 63G(2) to carry out an investigation may, for the purposes of the investigation—
(a) require a person, being an air carrier, or an employee or agent of such an air carrier, who, in the authorised officer’s opinion—
(i) possesses information that is relevant to the investigation, or
(ii) has any record or document within the person’s possession or control or within the person’s procurement that are relevant to the investigation, to provide that record or document, as the case may be, to the authorised officer,
(b) where the authorised officer thinks fit, require that person to attend before him or her for the purpose of so providing that information, record or document, as the case may be,
and the person shall comply with the requirement.
(2) A requirement under subsection (1) shall specify—
(a) a period within which, or a date and time on which, the person the subject of the requirement is to comply with the requirement, and
(b) as the authorised officer concerned thinks fit—
(i) the place at which the person shall attend to give the information concerned or to which the person shall deliver the record or document concerned, or
(ii) the place to which the person shall send the information, record or document concerned.
(3) A person required to attend before an authorised officer under subsection (2)—
(a) is also required to answer fully and truthfully any question put by the authorised officer, and
(b) if so required by the authorised officer, shall answer any such question under oath.
(4) Where it appears to an authorised officer that a person has failed or is failing to comply or fully comply with a requirement under subsection (2) or (3), the authorised officer may, on notice to the person and with the consent of the Irish Aviation Authority, apply in a summary manner to the Circuit Court for an order under subsection (5).
(5) The Circuit Court, on hearing an application under subsection (4), where satisfied that the person concerned has failed or is failing to comply or fully comply with the requirement concerned, may—
(a) make an order requiring the person, within such period as the Court may specify, to comply or fully comply, as the case may be, with the requirement, or
(b) substitute a different requirement for the requirement concerned.
(6) The administration of an oath referred to in subsection (3)(b) by an authorised officer is hereby authorised.
(7) A person the subject of a requirement under subsection (1) or (3) shall be entitled to the same immunities and privileges in respect of compliance with such requirement as if the person were a witness before the High Court.
(8) Any statement or admission made by a person pursuant to a requirement under subsection (1) or (3) shall not be admissible in evidence in proceedings for an offence (other than an offence under subsection (12) brought against the person, and this shall be explained to the person in ordinary language by the authorised officer concerned.
(9) Nothing in this section shall be taken to compel the production by any person of statements, records or other documents or other information which would be exempt from production in proceedings in a court on the ground of legal professional privilege.
(10) For the purposes of an investigation, an authorised officer may, if he or she thinks it proper to do so, of his or her own volition conduct an oral hearing.
(11) Schedule 3 shall have effect for the purposes of an oral hearing referred to in subsection (10).
(12) Subject to subsection (9), a person who—
(a) withholds, destroys, conceals or refuses to provide any information or statements, records or other documents required for the purposes of an investigation,
(b) fails or refuses to comply with any requirement of an authorised officer under this section,
(c) in purported compliance with a requirement under this section, gives to an authorised officer information, documents or records which the person knows to be false or misleading in a material respect, or
(d) otherwise obstructs or hinders an authorised officer in the performance of functions under this Act,
shall be guilty of an offence and shall be liable—
(i) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(ii) on conviction on indictment, to a fine not exceeding €250,000 or imprisonment for a term not exceeding five years or both.
(13) In this section, a reference to a document or record includes a reference to copies of such document or record.
(14) The powers conferred under this section on an authorised officer to whom subsection (1) applies are in addition to the powers conferred on such an authorised officer under section 63C.
63I. (1) Where an authorised officer has completed an investigation, he or she shall, as soon as is practicable after having considered, in so far as they are relevant to the investigation—
(a) any information, records or other documents provided to him or her,
(b) any statement or admission made by any person,
(c) any submissions made, and
(d) any evidence presented (whether at an oral hearing or otherwise), prepare a draft, in writing, of the investigation report (“draft investigation report”) and give, or cause to be given, to the air carrier to which the investigation relates—
(i) a copy of the draft investigation report, and
(ii) a notice in writing stating that the air carrier concerned may, not later than 28 days from the date on which the notice was served on it (or such further period not exceeding 28 days as the authorised officer allows), make submissions in writing to the authorised officer on the content of the draft investigation report.
(2) An authorised officer shall—
(a) as soon as is practicable after the expiration of the period referred to in subsection (1)(ii), and
(i) considered the submissions (if any) made in accordance with subsection (1)(ii), and
(ii) made any revisions to the draft investigation report which, in the opinion of the authorised officer, are warranted following such consideration, prepare the investigation report and submit it to the Irish Aviation Authority with any such submissions annexed to it.
(3) An investigation report and a draft investigation report under this section shall be in writing and shall state—
(a) whether the authorised officer—
(i) is satisfied that an infringement of a relevant provision or, as the case may be, a relevant obligation of the air carrier to which the investigation relates has occurred or is occurring, or
(ii) is not so satisfied,
(b) where paragraph (a)(i) applies, the grounds on which the authorised officer is so satisfied, and
(c) where paragraph (a)(ii) applies—
(i) the basis on which the authorised officer is not so satisfied, and
(ii) the authorised officer’s opinion, in view of such basis, on whether or not a further investigation of the air carrier is warranted and, if warranted, the authorised officer’s opinion on the principal matters to which the further investigation should relate.
Irish Aviation Authority to consider investigation report
63J. (1) The Irish Aviation Authority on receipt under Section 63I(2) of an investigation report, shall, for the purposes of the inquiry concerned, consider the report and any submissions annexed to it.
(2) Where the Irish Aviation Authority, in considering the documents referred to in subsection (1), forms the view that further information is required for the purpose of enabling it to make a decision as to the existence of an infringement, it may, as it considers appropriate, do one or more of the following:
(a) conduct an oral hearing;
(b) give the air carrier to which the investigation concerned relates—
(i) a copy of the investigation report, and
(ii) a notice in writing stating that the air carrier, within 21 days from the date on which the notice was served on it (or such further period not exceeding 21 days as the Irish Aviation Authority allows), make submissions in writing to the Irish Aviation Authority in relation to such matters as the Irish Aviation Authority may specify in the notice;
(c) direct an authorised officer to conduct such further investigation into such matters as the Irish Aviation Authority considers necessary having regard to the investigation report and submissions (if any) annexed to it.
(3) Schedule 3 shall, with any necessary modification, have effect for the purposes of an oral hearing referred to in subsection (2)(a).
(4) Sections 63H and 63I and this section shall apply to a further investigation conducted in compliance with a direction under subsection (2)(c), as if the reference to an authorised officer in those sections was a reference to an authorised officer directed under subsection (2)(c) to conduct the further investigation.
Power of the Irish Aviation Authority to decide to impose administrative fine
63K. (1) The Irish Aviation Authority, in considering—
(a) whether to make a decision to impose an administrative fine, and
(b) where applicable, the amount of such a fine, shall act in accordance with this section.
(2) Where the Irish Aviation Authority has considered a report and any submissions in accordance with section 63J(1) and, as applicable, having regard to its exercise of any of its powers under section 63J(2) and the outcome thereof, it may decide to impose an administrative fine in respect of any violation by an air carrier of an applicable requirement.
(3) The maximum amount of a fine that may be imposed in respect of a violation is 10 per cent of the turnover of the air carrier in the most recent financial year for which audited accounts are available.
(4) In setting the amount of an administrative fine, the Irish Aviation Authority shall take into account the following—
(a) the nature, gravity and duration of the infringement,
(b) whether it occurred negligently or intentionally,
(c) the degree to which the infringement endangered public safety,
(d) any relevant previous infringements by the air carrier, and
(e) the principle of proportionality
(5) The Irish Aviation Authority, as soon as practicable after—
(a) a decision to impose an administrative fine is confirmed under section 63L(3)(a) or
(b) the court decides, under section 63L(3)(b), to impose a different fine,
shall give the air carrier concerned a notice in writing, requiring the air carrier to pay the amount of the fine concerned to the Irish Aviation Authority within the period of 28 days commencing on the date of the notice.
(6) An air carrier shall comply with a requirement referred to in subsection (5).
(7) All payments received by the Irish Aviation Authority under this section shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.
(8) In this section and section 63L a reference to a decision to impose an administrative fine shall be construed as a reference to a decision by the Irish Aviation Authority to impose such a fine.
Appeal against administrative fine
63L. (1) An air carrier that is the subject of a decision to impose an administrative fine may, within 28 days from the date on which notice of the decision concerned was given to it under section 63K(5) appeal to the court against the decision.
(2) The court, on hearing an appeal under subsection (1), may consider any evidence adduced or argument made by the air carrier, whether or not already adduced or made to an authorised officer or the Irish Aviation Authority.
(3) Subject to subsections (4) and (5), the court may, on the hearing of an appeal under subsection (1)—
(a) confirm the decision the subject of the appeal,
(b) replace the decision with such other decision as the court considers just and appropriate, including a decision to impose a different fine or no fine, or
(c) annul the decision.
(4) The court shall, for the purposes of subsection (3), take into account the matters set out in section 63K(4).
(5) In this section, “court” means—
(a) the Circuit Court, where the amount of the administrative fine the subject of the appeal does not exceed €75,000, or
(b) in any other case, the High Court.
Circuit Court to confirm decision to impose administrative fine
63M. (1) Where an air carrier does not appeal in accordance with 63L(1) against 15 a decision by the Irish Aviation Authority to impose an administrative fine on the air carrier, the Irish Aviation Authority shall, as soon as is practicable after the expiration of the period referred to in that subsection, and on notice to the air carrier concerned, make an application in a summary manner to the Circuit Court for confirmation of the decision.
(2) The Circuit Court shall, on the hearing of an application under subsection (1), confirm the decision the subject of the application unless the Court sees good reason not to do so.”.
I commend the people who put the amendment together on the level of detail. This deals with the issue of graduated sanctions. At present, and as proposed in the Bill, the IAA is limited to one sanction for entities, airlines, maintenance organisations, airports, flying schools and licenceholders not in compliance with regulations. This is the removal of the licence or permit. Not surprisingly, this means the IAA could be reluctant to impose such a drastic sanction, which is problematic in terms of effectively regulating the behaviour of those entities that come under the authority's remit. It is argued that the IAA needs to be able to apply graduated sanctions in addition to the ultimate sanction of removing a licence or permit, and the lack of such graduated sanctions weakens the IAA's effectiveness. People will appreciate the concept of graduated sanctions and the ability to influence the behaviour of organisations. There is a comparator. The banking regulator, the Central Bank, has the ability to apply graduated penalties and routinely does so as part of its regulatory activities. The inclusion of this section, which would permit investigations and allow for the application of graduated sanctions if wrongdoing were found, would be an important regulatory development in the sector.