Amendments Nos. 10 and 11 are related and may be discussed together.
SECTION 23.
I move amendment No. 10:
In page 22, subsection (7) (a), to insert ", or in zoology or in any other scientific pursuit," after " forestry " in line 44.
These amendments affect section 23 and are corollaries of the foregoing amendments to section 22. Section 23 establishes that the wild animals listed in the Fifth Schedule will be protected species and provides in subsection (5) that subject to the exceptions in subsection (7), it will be an offence to hunt protected wild animals except under licence or special permission or to injure them or to wilfully interfere with or destroy their breeding places.
The purpose of amendment No. 10 is to add to the reasonable exceptions to those provisions, in order to exempt the disturbance or injury of protected animals or their breeding places while engaged in zoological or other scientific studies of them.
As in the case of ornithology, with which I have just dealt, amendment No. 11 provides a consequential safeguard against any abuse of this new exception. Again, it should be a simple matter for a person engaged in zoology, or in any other scientific pursuit related to protected wild animals, to establish his bona fides if and when challenged. Consequently, in practice the prosecution would not arise.
We had quite a lot of discussion on the Misuse of Drugs Bill on this very point, about prosecutions and the necessity to prove things where offences are concerned. It has become so much the order of the day now that there is not, I suppose any great point in fighting this amendment to the death. But it is part of this continual creeping process of making it easier for the prosecution to convict. I am not sure that in the long run the interests of justice will be best served by these sorts of amendments.
As the Chairman knows, as a lawyer, the old, well-tried approach was that the prosecution proved its case. In this type of provision we are now exempting them from proving their case. Of course, that means that the unfortunate defendant has to establish if he was or was not doing certain things at a certain time. It shifts the onus of proof from the prosecution on to the defendant. It is very undesirable. For the life of me I cannot see why it is necessary to do it in this sort of legislation, whatever about life and death legislation such as the Misuse of Drugs Bill. Here we are dealing with legislation more concerned with the environment, leisure activities and knowledge of that sort. I do not know if what is, in effect, a Draconian type of provision is necessary in this legislation. I should like to hear what the Minister has to say.
I should like to deal with the points raised by Deputy Haughey. The amendment provides that it shall not be an offence for a person to do certain specified things while he is engaged in zoological or other scientific studies. The other amendment then goes on to provide that, in a prosecution of that nature, the onus shall not be on the State to prove that the defendant was not, in fact, engaged in zoological or other scientific studies. If that onus were to be put on the State it might be well nigh, if not absolutely, impossible for the State to prove that somebody who was catching, shooting, or disturbing birds was not engaged in a zoological or scientific study. It would make it impossible for the State to establish its case. The defendant would merely have to sit back and await proof from the State that he was not engaged in a zoological or scientific study. If on the other hand, the accused person is a bona fides student of birds or wildlife, who is carrying out such a study and explains that to the officer concerned, the likelihood is that he will not be prosecuted at all. But should he still be engaged in a bona fide study of wildlife and a prosecution is brought against him, he will have very little difficulty in establishing to the satisfaction of the court that he was engaged in the lawful pursuit of the zoological or scientific study.
I am not surprised that the Opposition would make this point because it is an obvious one to make. We are not involved in any new procedure here. There are many precedents for what we are doing. First of all, it goes back to the old Customs Consolidation Act of eighteen hundred and something—which I have not got—which puts an onus on a person who is found in possession of goods which originated outside the State to prove that the duty is paid on them. We have a similar provision to that mentioned here in the Gaming and Lotteries Act, 1956, in the Fisheries (Consolidation) Act, 1959, and in the Road Traffic Act, 1961.
The creeping process to which I referred.
Under the Road Traffic Act of 1961 it is not necessary for a member of the Garda to prove that somebody has not got a driver's licence; the onus is on the individual to produce his driver's licence, to produce his certificate of insurance. I understand that there is a similar precedent for this in the Diseases of Animals Act, 1966. I would base my argument in favour of this amendment not so much on precedent as on common sense. If the people charged with the enforcing of this section can prove that the person concerned is not engaged in zoological or scientific study, a prosecution will follow automatically.
It is also during the course of prosecution that an innocent person will have to prove he was doing something lawful. It is the old argument of whose side are you on. This provision makes it much easier for the prosecution to prepare a case, to get into the court and have the alleged offender found guilty but of course there is another side to the coin and that is that very often innocent people are caught up in these sorts of situations. I, for instance, know a secondary schoolboy who is very interested in birdlife. He has no particular scientific authorisation to protect him.
May I just interrupt? We are not dealing with birds under this section. We are only dealing with the sorts of protection for wild animals other than wild birds.
I do not regard that as a very legitimate interruption.
I merely wish to keep the record straight.
We are dealing with an amendment shifting the onus of proof from the prosecution on to the defendant and I want to give an example of a schoolboy whom I know and who has no particular authorisation, no scientific qualification. He just happens to be interested in nature studies and in studying birds. He comes around my place often in pursuance of that hobby of his. I could quite conceivably visualise that boy getting into a situation where he would be taxed with an offence under this legislation and he then would have to set about proving that he had a genuine, though amateur interest in ornithology rather than have the prosecution prove that he was on some nefarious intent. I just make the point. I know that the Minister can quote various Acts where this sort of thing now obtains and that it is part of this creeping process which slowly but surely is undermining the concept that a person is innocent until he is proven guilty. These sorts of provisions, slowly but surely and step by step, make it easier for the prosecution and the Garda. The ultimate thing is that the defendant has to prove his innocence rather than vice versa. I make that point and no word of the Minister is going to carry the day on this. I protested about this trend in other legislation and I protest about it here, too.
Since the Deputy is drawing attention to the fact that we are dealing with mammals and not with birds I am reminded that we have in fact either accepted or passed a similar amendment under section 22 dealing with birds. The difficulty here is that if we were to place on the State the onus of proving that a person was not engaged in zoology or ornithology or some scientific study we could not enforce these sections. I want to put it to the Committee that there will be invariably two steps in the prosecution. First, the officer enforcing these sections will find a person concerned doing something to birds, or in this section mammals, and he will ask, presumably, an explanation for it. If he is satisfied with the explanation, there would be no problem.
If he does not accept the explanation and there is a prosecution, the onus will be on the accused person to satisfy the court in a reasonable manner that he was bona fide engaged in the pursuance of ornithology or zoology. It is a reasonable onus to place on an accused person. There are many precedents for it and what is more important is that this section not alone would have no teeth but would simply be unenforceable without such provision.
I do not accept that. It is entirely a matter of which principle you give the most credence to, that is, the principle that a person is innocent until proven guilty, and it is the State's duty to prove that he is guilty or you opt for nice easy facile prosecutions with the Garda and the prosecution put to the minimum of trouble in order to find a person guilty.
It would be excluding from any offence any person who could show that he was interested in zoology or ornithology. The Minister's amendment says " or any other scientific pursuit ". Is the Minister happy that without again including the words " relevant or kindred scientific pursuits " you could not have the situation where somebody so accused could seek the protection of the legislation in proving that that which he was doing was scientific notwithstanding the fact that it was injurious to the spirit of the legislation?
I refer the Deputy to amendment No. 11 which reads as follows:
In page 23, between lines 37 and 38, to insert the following new subsection:
" (9) In any proceedings for an offence under this section it shall not be necessary for the prosecution to prove that any act constituting (whether in whole or in part) the alleged offence was done otherwise than while the defendant was engaged in agriculture, fishing or forestry, or in zoology or in another scientific pursuit."
The phrase " another scientific pursuit " is very broad and I am asking if the Minister is satisfied that that does not give a way out? Does it not have to be qualified to make it relevant to conservation or preservation?
No, I am satisfied that it would be taken to be a scientific study of the birds or the mammals.
If he is happy that it will be taken in that way without being so qualified I am happy too but I thought I should have the Minister's opinion on it.
I appreciate the Deputy's point.
The only thing I can say in easement of the situation is that at least the provisions of this Bill will not be used to send people to Van Diemen's Land, as happened in the past.
Regarding easy prosecution, the spirit of any legislation should not be based on the temperament of people who are operating at the time or on the particular modes of Parliament or climate. It should be drafted in a way that it suits any occasion that might develop. On the Bill generally, the Minister did move an amendment to another section to ensure that the prosecution takes place in the area in which the person was found to be guilty. Is it not necessary to have an amendment to this effect?
We have discussed amendment No. 12 which provides for this.
I did not know that.
Amendment agreed to.
I move amendment No. 11:
In page 23, between lines 37 and 38, to insert the following new subsection:
" (9) In any proceedings for an offence under this section it shall not be necessary for the prosecution to prove that any act constituting (whether in whole or in part) the alleged offence was done otherwise than while the defendant was engaged in agriculture, fishing or forestry, or in zoology or in another scientific pursuit."
I want to be recorded as dissenting from this amendment although I am not asking my colleagues to agree with me.
Amendment put and agreed to.
I move amendment No. 12:
In page 23, between lines 37 and 38, to insert the following subsection:
" (10) Proceedings for an offence under this section may be taken in any District Court District, and in case such proceedings are taken and apart from this section the Justice before whom the proceedings are brought would not have jurisdiction to hear and determine the proceedings, then for the purpose of conferring such jurisdiction the offence may be treated as having been committed within the District Court District to which such Justice is assigned ".
In relation to this amendment, in subsection (4) of section 58 you have an amendment which does the same thing but in which the wording is quite different.
We will come to that later on. I understand that that deals with the territorial seas and it is a quite different situation from the present circumstances.
Some fellow might be up to his neck in water.
Amendment agreed to.
Question proposed: " That section 23, as amended, stand part of the Bill."
I would summarise section 23 by saying that this section applies to wild animals—with necessary modification—as section 22, applies to wild birds. We have discussed section 22 at some length and, as I say, section 23 applies to wild animals.
It is set out in Schedule 5.
We will be discussing this when we come to it?
We will be discussing the particular animals then?
With some apprehension I listened to the Minister when he was speaking with particular reference to subsection (7). I see that for the first time in our deliberations we now declare that nothing in the section shall make unlawful:
(i) the taking and killing of hares by coursing at a regulated coursing match which is held both during a period specified as regards hares in a hares order and in a place to which such order applies,
(ii) the hunting of hares by means of a pack of beagles or harriers both during a period specified as regards hares in a hares order and in a place to which the order applies,
I doubt if Deputy Haughey's comment would dissent from this section. In fact if I were in Opposition I would be voting against the section. Not having that privilege I can at least record the fact that I find the section abhorrent and I consider that any Parliament which would regard as lawful that one could take and kill hares by coursing at a regulated course meeting, to be uncivilised in its parliamentary assessment.
I regard also as uncivilised the hunting of hares by harriers or beagles. I am pleased to note that my parliamentary counterparts in Britain and Northern Ireland will deal very shortly with this situation in their respective areas. In Britain there is already a parliamentary majority in favour of a Bill making such barbarous activities illegal, declaring them to be illegal and unlawful. I look forward with pleasure to, perhaps in the years ahead, when this country will follow suit. In saying that I in no way detract from the tremendous merits of this Bill, the tremendous competence shown by the Minister in introducing this Bill and the dedicated efforts he has made to get it through. But it would be very remiss of me if I were not to put on record my abhorrence of these activities which I regard as unmitigated cruelty. I will have more to say about other aspects of the Bill later on.
The measure is one that deals with the conservation of wildlife.
With due respect, the section says it shall not be unlawful. . . .
I think that if the Deputy takes the official record and shows it to those people in Dún Laoghaire/Rathdown, they will be quite happy with his contributions.
I have been very surprised to have seen and authenticated no less than 92,000 signatures on a petition which were collected by means of public advertisement.
It is always a social tenet that you must not alone control people at work but you must also control every aspect of their daily lives.
There is a very substantial body of opinion in the country, much larger than I think the Deputy would perhaps think, which is completely opposed to that aspect of the Bill. I just put it on record and indeed I might say that a very distinguished member of this Committee, unfortunately deceased, the late Deputy Noel Lemass, shared my views on this. I am surprised that no one in his party is representing the views he held.
This is not relevant. The citation of certain acts of cruelty to animals—I presume you are also concerned with the bird life—is not relevant to the legislation which we are discussing——
The socialists are going to stop people fishing as well.
I am making the point about hares.
Might I say that the purpose of this Bill is to conserve wildlife? It is not an anti-cruelty to animals Bill, it is not an anti-bloodsports Bill. I concede that some of the matters raised by Deputy Desmond are emotive. I know that different people hold different views on this subject. Coursing is controlled by the Greyhound Industry Act, 1958. It is controlled by the Irish Coursing Club. We are not altering the position here. We are preserving the status quo. But under this Bill I have wide power to protect hares and to restrict coursing or to restrict the hunting or catching of hares if I think that necessary in the interest of their conservation. In other aspects of this Bill which are not related to this section very considerable protection is afforded to wild creatures in general. The Bill has been heralded by most people as a charter for wildlife. I have the necessary powers within the Bill to control coursing and to restrict the catching of hares if that is necessary in the interests of conservation.
I do not want to enter into a long argument with the Minister on the point. I accept that the particular prohibition is not his portfolio but, in so far as he does maintain the status quo in the Bill, it is certainly germane to the point he has made. As one who spent a good deal of my life in the coursing area around Cork, who knows something about coursing and many people involved in coursing clubs throughout the country, I would point out to the Minister very strongly that the hare species, as such, is declining quite rapidly in the country. Talk to anybody involved in coursing about the prices paid now for a hare for coursing meetings. Notwithstanding the best endeavours of the Minister and the best regulations laid down in this Bill, I would predict that, on the basis of current coursing activity in the country—whether regulated in this kind of way, and as we all know it is almost impossible to regulate it effectively—this Bill will become by 1985 a rather academic piece of historical parliamentary effort at conservation, with no real consequence for the preservation of the hare species.
I just want to say that the Minister in regard to conservation has to keep a balance between different forces in nature. I am sure members of another section of his Department, the Forestry Division, will tell him that the hare can be a very dangerous menace in certain circumstances. There is nothing more deadly where young trees are concerned than hares.
I have not heard of them mentioned in recent years by the Department of Lands.
I can tell the Deputy from my own experience that one hare in one night can do absolutely incalculable damage to a young plantation. Where wildlife is concerned there are two sides to every aspect of it.
That may well be. I am simply talking about—I do not want to become unduly argumentative about it—making it lawful to kill hares by coursing them at regulated coursing events. Certainly I can envisage situations in agricultural areas where there may be a high incidence of population and extermination on a controlled basis may be allowable. I am quite prepared to accept that. What I am not and never have been prepared to accept is the cruelty, the abuse and the savagery I have witnessed at coursing meetings which we are legalising under this section by saying that it is not unlawful. I make that point. I know many people do not agree with me. I just want it on record.
If the number of hares is declining in the country it is certainly not due to the activities of coursing clubs. I have attended many coursing meetings and the percentage of hares killed at present is very small. As a matter of fact the coursing clubs encourage the breeding of hares and the conservation of areas to breed hares. They even go so far as to feed hares. If there is cruelty and savagery it is very often due, especially in rural areas, to itinerants, who go out with ten or 15 mongrel dogs on anybody's land with sticks and stones. They maim and kill more hares in one evening than would be killed in half-a-dozen coursing matches. We have alleged sportsmen who go out with guns and unfortunately very often shoot hares. What is worse—and I have seen them do it on my land—they have shot them for the sport of it and left them there. They would not even bother to bring them home.
May I say something on one aspect of this, in view of what Deputy Desmond referred to? He referred to coursing as being a cruel sport. I want to make one thing very clear. Those people in my constituency who are involved in this are very concerned about any aspect of cruelty in relation to coursing. Our experience is that there is far greater cruelty and abuse of a hare by private individuals who catch them and try them out on dogs without any supervision whatever and without the hare getting any chance of escaping until it is ultimately mutilated by an untrained dog just to give it the smell of a hare. I would say there are literally hundreds of hares killed that way to the one or two that happen to be killed at a coursing meeting.
Furthermore, it is a matter of pride to everybody who attends a coursing meeting that the hare escapes. It is regarded as a bit of a tragedy if a hare is caught. That is the attitude of true coursing people. It is an ancient sport in this country. There has been very biased propaganda promulgated on this. Unfortunately, a lot of people, quite innocently, have been made party to this without knowing the true facts. I am talking about people who spend a great deal of money in conserving the hare population and see that coursing is properly monitored and looked after. I could go on for a very long time on this. But I have listened to various remarks here and I think it would be very unfair and unjust to those people in the greyhound industry if those matters were not clarified.
I have nothing against the greyhound industry as such.
I would be prepared to argue the rights and wrongs, merits and demerits of coursing as one who has, from time to time, attended coursing meetings but I would urge the Committee to accept that this is not the measure in which to debate the rights or wrongs of coursing. All I am asking the Committee here is to exempt the coursing of hares at regulated coursing matches. It will be permissible and legal to do that during the open season. As we all know practically all coursing takes place between the end of September and the end of February. There are a couple of meetings held in the month of March and it is necessary to take power to give a licence in regard to those meetings. That is done in section 26.
I know that coursing clubs make every effort to make sure that the hares are trained to get to the escape, that they know where the escape is. They make sure that the odds are weighed heavily in favour of the hares escaping. They spend a lot of time, money and effort in making sure that the odds are in favour of the hare escaping. This subject is emotive. Deputy Desmond's statements are not factual. If we start talking about the killing of hares we might as well start talking about the killing of foxes.
Shooting them.
And the shooting of foxes in their dens, before they come out of the dens at all. If we continue to argue on these lines it would never end.
There is nothing nicer than to see a nice big hare loping along a green field. It is a beautiful, wonderful and attractive sight. That same hare that evening can do incalculable damage if one has planted new trees. In all these things we have to maintain a rational balance.
Coursing clubs are very much maligned. I live in an area where they collect hares for coursing. In Loughrea the coursing club return our hares to us after a coursing match, big fat hares.
The Galway people are very special.
Ah no, the coursing clubs are very good about it. They take great care of the hares.
I will not pursue the point except to say that as a politician I tend to take a very jaundiced view of people who hold particular viewpoints. I do not accept, even where coursing clubs are involved, that there has not been an excessively high incidence of cruelty and abuse. I do not accept one or two hares are killed at coursing matches; the number could be trebled and quadrupled, in many cases.
As one who attended quite a number of coursing meetings in my youth and since as one who late in life developed an attitude on this, I simply want to put it on record. I do not want in any way to detract from what I regard as the efforts of the Minister to try to do a good job. He has been very sensitive and competent in so doing. But he is aware of my views and I do not propose to pursue the matter.
Mr. Kitt
As regards regulations under subsection (3) which can be amended by a Minister only with the concurrence of the Minister for Agriculture and Fisheries, I would be interested to know why the Minister for Agriculture and Fisheries has to sign the regulation as well as the Minister for Lands, if I am reading it correctly.
As the Deputy will appreciate, wildlife, in general, is——
It is because he is Minister for Agriculture and Fisheries.
Exactly, that is what I was coming to. This subsection is included to ensure that where the Minister, by regulation, has to remove from or add to the Fifth Schedule protected wild animals, species of fish or acquatic invertebrate animals such as the sea urchin, he can do so only with the concurrence of the Minister for Agriculture and Fisheries. This would be done by having regulations signed by the two Ministers jointly. The Minister for Agriculture and Fisheries is the Minister in charge of Fisheries. The Minister for Lands only comes into Fisheries in a very peripheral way. That is the reason it is necessary to get the concurrence of the Minister for Agriculture and Fisheries.
Question put and agreed to.