Fisheries (Statute Law Revision) Bill, 1956—Second Stage.

Question proposed: "That the Bill be now read a Second Time."

As Senators will have gathered from the explanatory memorandum circulated with this Bill, the measure is intended to facilitate the enactment of a Fisheries (Consolidation) Bill and it may be appropriate to recall at this stage how the process of consolidation now stands. The Consolidation Bill as introduced in 1952 was in March 1953 referred by both Houses to the Standing Joint Committee on Consolidation Bills. That committee completed its work and presented its report in July, 1953, but the Bill was not then proceeded with as it was considered more fitting that it should be revised to remedy certain defects and inconsistencies in the Fisheries Statutes as they stood to which attention had been drawn informally by the committee. The Bill which is now before the House proposes to give effect to the committee's suggestions and also provides for certain other minor amendments of a procedural nature, the need for which has become apparent in the past few years.

The explanatory memorandum gives fairly full information as to the contents of the Bill and as it is proposed that the Bill be sent to a special committee of the House, no detailed comment by me seems necessary at this stage. I should, however, draw attention to groups of sections of the kind already mentioned, namely, those of a procedural nature not suggested by the report of the Standing Joint Committee but suggested rather by experience in administration during the past few years.

The provisions in the first group, Sections 6 to 9, deal with fishery rating and do no more than bring the law on that subject into line with that relating to the rates struck by local authorities as regards liability for rates and the power to issue new or amended demand notes. In point of fact, many boards of conservators had followed local authority practice in these matters, but on taking legal advice it was found that the local government code did not apply here, and what is now being done is simply to restore with legal effect what had until recently been regarded as correct practice.

The second group of provisions, Sections 17 and 18, makes good some defects which were found to exist in the law relating to detention of boats and seizure of gear arising from offences under the Sea Fisheries (Protection) Acts. A number of captures of this kind have been made in recent years and experience in dealing with them has brought to light the need for specific power to detain a boat and if necessary to have the boat moved from place to place and for the purpose of removing forfeited fish or nets and using the boat's own lifting gear for the purpose. I am sure that Senators will have no difficulty in agreeing that these provisions are both desirable and reasonable.

It is intended that on enactment of this measure the new provisions will be incorporated in the draft Fisheries (Consolidation) Bill, which will then be reintroduced at the earliest practicable date.

The fact that there has been so much legislation in recent years in connection with fisheries indicates the importance of fisheries in the economy of the country and the difficulties that have to be contended with in the supervision and administration of that work.

The Parliamentry Secretary has stated that there are only minor amendments in the Bill which is now before the House, but I should like to suggest that certain serious principles are introduced. For instance, at this stage, I should like to refer the House to Section 16 (2) (b), in which the onus of proof that a fish is lawfully captured is placed on the person in whose possession the salmon or trout may be. To my mind, that is a very serious infringement of the liberty of the citizen and it is putting too great a burden on the individual to have to prove that the fish was lawfully captured. In the 1924 Act, that section referred only to unseasonable fish, black fish or fish that are obviously unsuitable for capture.

The Bill imposes an obligation on a common carrier. I assume a common carrier is a person authorised to carry merchandise as, for instance, a railway company or a licensed haulier. It is suggested that if fish are found in the possession of such a person and unless he can produce a certificate from the consignor that the fish was lawfully captured he may be committing an offence. I feel that that is too great an imposition on a common carrier and on the consignor.

I want to refer to Section 23 in detail. It is difficult to understand the purport of that section, because it does not specify explicitly the particular section of the State Property Act to which reference is made. Under the 1920 (Ireland) Act, the Six Counties and two boroughs were granted to Northern Ireland. At the time of the Treaty, those areas were entitled to opt out within a month and, if they did not do so, then they did not form part of Southern Ireland. However, only those Six Counties and two boroughs were given to the jurisdiction of Northern Ireland, so that any territorial waters would be part of Southern Ireland. If it can be suggested that County Derry is bounded on the west by Lough Foyle, then I suggest that all Lough Foyle and, possibly, the River Foyle belong to this State, up to the high water mark on the County Derry side.

In the Down survey made by Sir William Petty about the year 1657, County Derry was described as being bounded on the west by Lough Foyle. Section 27 of the State Property Act states that every right and every prerogative, which by virtue of Article 49 of the Constitution, belong to the people relate to any property and shall be exercised by the Government through and by the Minister.

Might I suggest that by the implementation of this particular section this State may be divesting itself of part of the territory of the State and that the Bill may, therefore, be unconstitutional? It was argued in a case before the Lord Chancellor in 1856, Allen v. Donnelly, by the Irish Society that Lough Foyle was not part of County Derry. If that is the position, then I suggest that this House should consider very carefully whether Section 23 of the Bill should not be deleted.

There are a number of other amendments with which I should like to deal, but they can be dealt with much more satisfactorily by the Special Committee. I take it that the Special Committee will report and that their report will then be considered by the House.

I noted very carefully the observations of Senator Walsh in this matter and as it is proposed to let this Bill go to a Special Committee of the House, it is hardly necessary for me to make further comment on it at this stage.

Question put and agreed to.