I move:—
In sub-section (1) (d) to insert after the words " intended for " in line 63 the word " export."
SECTION 10.
(1) Any inspector shall be entitled at all reasonable times to enter upon and have free access to the interior of—
(a) any premises registered under this Act, or
(b) any premises in which butter is sold, or is exposed, kept, or stored for sale, or is stored for preservation by exposure to cold or otherwise, or
(c) the premises of any person engaged in the business of carrying goods for reward, or
(d) any warehouse or other premises of any person engaged in the business of warehousing goods intended for or in process of being exported, or
(e) any pier, quay, wharf, jetty, dock, or dock premises, or
(f) any ship, boat, railway waggon, motor, lorry, cart, or other vessel or vehicle used for the conveyance of goods.
(2) Any inspector may inspect any butter, or any package found in any place upon or to which he is entitled under this section to enter or have access or upon or in any public place, and may open any such package which he reasonably believes or suspects to contain butter, and may take and remove without payment,
(a) reasonable samples of any butter found in any such place, whether such butter is or is not contained in a package, and
(b) reasonable samples of any wrappers or packing materials in which any such butter is packed, and
(c) any one package forming part of a consignment of butter found in any such place.
(3) If any person—
(a) obstructs or impedes any inspector in the exercise of any of the powers conferred on him by this section, or
(b) knowing the name or other particulars of the consignor, consignee, or owner of any butter or of any package which an inspector is entitled to inspect under this section, refuses to give such name or other particulars to such inspector, or
(c) wilfully or recklessly gives to such inspector any false or misleading name or other particular of any such consignor, consignee, or owner,
such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof, in the case of a first offence to a penalty not exceeding five pounds, and in the case of a second or any subsequent offence to a penalty not exceeding ten pounds.
(4) Where any package is taken by an inspector under this section it shall be the duty of such inspector to notify the owner or the consignor and the consignee (if and so far as their names and addresses are known to or can reasonably be ascertained by him) of the taking of such package.
(5) If on the examination of any package taken under this section it appears to the Minister that there was a contravention or attempted contravention of any of the provisions of this Act or any regulations made thereunder in relation to the consignment from which the package was taken, the package shall be forfeited to the Minister, and in any other case the package shall be disposed of in accordance with the directions of the owner or the consignor or, in default of such directions, shall be sold and the net proceeds of the sale paid to the consignor.
(6) Neither the Minister, nor any inspector shall be liable for any loss or damage arising from the exercise by an inspector of any of the powers conferred on him by this section, and no action shall lie against the consignor, or any other person, for or on account of any such loss or damage as aforesaid.
I am accepting that. It is a clerical error.
Amendment put and agreed to.
I move:—
In sub-section (6), line 49, after the word " shall " to insert the words " except in the event of proved culpability."
I think the reason for that proposed amendment is very obvious. In the case of proved culpability on the part of an inspector where there is loss sustained I think there should be power to take action in the matter. The insertion of words like these would probably be a deterrent to anyone who would be likely to be lax in his duties to such an extent as to lead to a cause for action.
I don't think that the amendment is necessary, and I don't think that it effects anything. If a fraud is committed, there is the criminal law; and if an inspector is not doing his work, there are disciplinary measures.
But it does not include ordinary legal procedure. The sub-section says: " Neither the Minister, nor any inspector shall be liable for any loss or damage arising from the exercise by an inspector of any of the powers conferred on him by this section, and no action shall lie against the consignor." I think that indemnifies him against all legal proceedings, even though there may be an undue or unnecessary holding up of a consignment of butter for export, and consequent loss to the exporter or the producer.
The point made by Deputy Milroy may be important. It does seem to me that we might consider the importance of the amendment in this light:—The sub-section says: " Neither the Minister nor any inspector shall be liable for any loss or damage arising from the exercise by an inspector of any of the powers conferred on him by this section, and no action shall lie against the consignor, or any other person, for or on account of any such loss or damage as aforesaid." That means to say that in the case of an inspector exercising his powers under this section, even though he might exercise them culpably or negligently, or perhaps even through spite, no action will lie against him. That is, I think, Deputy Milroy's point. I am not sure whether it is not indemnifying the inspector beforehand for any action he may take, even though it was part of a conspiracy.
I think it is quite obvious that an inspector exercising his powers may do things which may cause loss to the person concerned. But he knows in advance that he cannot be prosecuted, and that he is indemnified against all legal proceedings by the sub-section as it stands at the moment. But the insertion of the proposed words would indemnify him merely for actions perfectly legitimate in the discharge of his duty, and he would understand that going outside those legitimate functions and stretching his powers beyond the legitimate interpretation of his duties would render him liable to serious penalties. I should like to know whether the Minister would see his way to consider this matter.
It is a common form section.
The objection may apply to every policeman, for instance. I think myself the servants of the State have that protection.
To include proved culpability would be certainly stretching the interpretation to an extraordinary degree. Even where a constable is found engaged in some culpable act he could be criminally prosecuted and he would not be protected. That is all that is aimed at in this amendment.
If the inspector abuses his position would it not be possible to make arrangements to secure that the aggrieved party would call in the arbitrator?
Would this mean that, if on the decision of the arbitrator on some point the inspector was found to be at fault, that after the decision of the arbitrator the inspector would be liable to have legal proceedings taken against him?
It might. I think the section is a common form section that applies to all legislation of that kind.
It raises a very big question, and that is my objection.
I withdraw it, and if on further consideration it is deemed necessary to bring it forward on Report, it can be done.
I should personally be quite satisfied with this sub-section if I was satisfied that it was common form.
Amendment, by leave, withdrawn.
I just want an explanation. The sub-section says: " No action shall lie against the consigner." Does that mean that if the consignee finds that the butter has been tampered with and refuses to take it, that an action may be taken against him?
If you send a consignment of butter to Mr. Baxter, and if we take some of that consignment as a result of examination, Mr. Baxter has no action against you for not supplying the full amount.
Is it right that the consignee should not have some protection?
It is not the consignor's fault.
He will have no redress either against the consignor or against the inspector, which seems hardly fair.
But to make the consignor responsible would be much worse.
Question—" That Section 10, as amended, stand part of the Bill "—put and agreed to.
Committee adjourned at 2.5 p.m., until 11 a.m. on July 3rd.