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SECTION 6.
I move:
In sub-section (1) to delete in line 33 the words " on payment of the prescribed fees."
I feel that it is a hardship to impose upon a small farmer who has an order under very wide powers made upon him that before he can appeal to the arbitrator he should pay fees. I see later on that the Government has taken permissive power to remit fees.
I think the fees are wrong, too.
We consider that it is bona fide.
It rests on the Government to return them or not as they like.
That is under Section 8. sub-section (2). " Regulations made under this section may, subject to the sanction of the Minister for Finance, provide for the return to the person applying for the reference of all or any fees paid by him upon a certificate of the arbitrator to the effect that the application was made bona fide, and was not frivilous or vexatious.”
There is an amendment to this later on. I will deal with my point on the later one.
We will pass from Amendment 10 for the moment, because Senator Sir John Keane will come back to it when he comes to the later amendment.
Consideration of Amendment 10 deferred.
I move:
In sub-section (2) to delete all after the word " notice " in line 40.
It seems an extraordinary thing to put in a statute that the judgment shall be in accordance with the cannons of justice.
Quite. It ought to go out.
Have you disposed of Section 4 as regards the penalty of five pounds?
We have passed from that, Senator.
I think the penalty is rather high.
It is the maximum penalty, anything from 1/- up to £5.
But at the same time that would give an indication to the Justice what he ought to put on; he can put on the big penalty as a maximum.
I do not think it ever works out like that. I think they understand the maximum part of it extremely well, as a rule, and we can easily quote the cases where you will agree that the maximum penalty should be imposed.
There is £5 a day in addition.
As a maximum also.
I consider it too high.
Every possible case?
Oh, well, the offences are here.
I think it ought to be reduced where it states " per day."
But this is not the " per day " one. The particular one that we have passed is a single penalty.
I think the Senator is referring to sub-section (6).
That is at the very bottom of page 5 and the top of page 6.
Take (h), " that any source of contamination to which the dairy produce manufactured in the premises, or the ingredients and materials thereof, are exposed be removed or rendered innocuous." Supposing the creamery insisted on leaving a cesspool opposite the door, or leaving milk sewage, which is probably the most objectionable of all sewage, so that it would contaminate the butter, and take up an absolutely obstinate attitude in that matter——
Well, while it might not be too high for a creamery, which is a big body, I think it would be too high on an individual farmer.
I could quote for you at the moment a case so bad that the individual farmer should not only be fined the initial fine, but the £5 per day. This particular section covers all the people who make butter for sale. As a maximum penalty it must be for the maximum offence.
I think you might let it go.
I move:
Immediately after sub-section (3) to insert a new sub-section 4 as follows:—
" (4) No point of law shall be determined by any arbitrator appointed under this Act."
This word " Physical " that has been introduced, to my mind, seems a very difficult word to interpret, and the interpretation might involve a point of law. There are several matters under this section that might involve points of law. I wish to have the court used in cases of a point of law, and not have it left entirely in the hands of lay arbitrators for legal interpretation.
The difficulty would be to define a question of law.
Surely there is a distinct difference between a point of law and a point of fact. Every construction of a statute is a question of law, or a regulation, or any written document, is a question of law.
Is there not a common form of phraseology to state that an appeal should be allowed on a point of law, not on a point of fact? You frequently see that in statutes. There must be some dividing line. I take it that under this section a point of law might arise as distinct from a point of fact, and I want it to be perfectly clear that the arbitrator is not to be the judge of the law.
Is it possible that a point of law could arise in this way? After all, the notice will be served specifying something specific, the premises to be cleansed, structural alterations, or matters of that kind? It will specify what the structural alterations are to be, some specific point in connection with the complaint. There will be something specific to do, in fact, put down in the notice. The owner of the creamery or premises will profess that he has it done; the Department think he has not, and take steps accordingly. That is a question of fact.
That is certainly a question of fact.
The arbitrator has not power to state a case. An ordinary arbitrator has power to state a case, but under this Act he would not have this power, and it is probably better not to give it to him, because if you did you would have endless litigation, which you do not want.
My difficulty is as a layman. If a point of law can ever arise anywhere it surely can arise under these two sections. If a point of law arises, I am not satisfied that this arbitrator should be the judge.
But is he? Is it not open to the owner of the premises to go into court at any time and challenge the notice?
If that can be done I am satisfied, but I do not think it can.
He could, but I am afraid it would be an expensive operation on his part. I am afraid he would have to go to the Circuit Court to get relief.
But is that case not inevitable?
He would undoubtedly have a remedy. He could go to the Circuit Court and ask for a declaration that the notice was ultra vires.
And was not governed by statute. In that case, I take it there is no need for the amendment, and I withdraw it.
Does the Bill not specifically declare that he can only go to the arbitrator—Section 6. sub-section (1)?
That is enabling him, not forbidding him, to go to court.
He has an inherent right to go to court?
Yes, that is never taken away unless you take it away expressly.
