Ivana Bacik (Independent)

I am also disappointed at the Minister of State's response to Senator Regan's amendment. It is unfortunate that he is not willing to contemplate some form of attachment of earnings or welfare option within the Bill, given that it purports to improve the situation as far as debtors are concerned and to ensure no further breach of the Constitution in the way the court will deal with debtors. Having read Ms Justice Laffoy's judgment, she clearly identifies the flaws in the current procedure and points out on page 69 and again on page 82 a list of the defects and flaws in the current procedure. We clearly need some mechanism that would give a different sanction of last resort for a debtor against whom enforcement proceedings have been taken. Some alternative to imprisonment should be employed.

The Minister of State responded to me in particular by referring to paragraph 5.2 of the recommendations of the FLAC report. I had read the first part of those which stated "Amongst the solutions considered should be attachment of earnings legislation." The Minister of State said that the next line reads "However, any such measure must be regarded as a last resort." That is correct. FLAC has suggested that it should be the last resort, in a sense, to replace imprisonment as the last resort mechanism. The start of paragraph 5.2 states: "The State should examine how effective, non-penal remedies should be employed in order to enforce compliance with civil debt judgments." It also states any such attachment of earnings mechanism "must also be practical and workable and must ensure that debtors are protected from adverse outcomes such as excessive deductions, multiple orders and loss of employment."

Clearly there is a degree of complexity. It would be difficult to operate a scheme without sufficient safeguards to ensure debtors are protected. In his proposal, Senator Regan has taken great care to ensure that debtors would be protected in this way. In particular I note that the provision that there should be a protected welfare rate below which the debtor's income should not sink even where an attachment of welfare order has been made. An effort has been made to ensure those requirements have been met.

The point FLAC is making is contained in the preceding paragraph, 5.1, which states: "The sanction of imprisonment should be removed immediately from the Instalment Order procedure for those who are unable to pay their debts." That is its starting point in a chapter headed "Removal of imprisonment as an option in debt cases." It clearly recommends that the sanction of imprisonment should be removed. I have already referred to Article 11 of the United Nations International Covenant on Civil and Political Rights, which similarly provides that there should not be the imprisonment of persons simply for inability to fulfil a contractual obligation. That should be our starting point, from which we should be examining reform of the procedures and not simply putting this sticking plaster on a gaping wound. This is really a sticking plaster that is shoring up the sanction of imprisonment by ensuring we have minimal safeguards in place. It does not take account of any of the more comprehensive safeguards that could be adopted. It does not remedy, for example, one of the things FLAC identified as a real problem for people, which is that these proceedings are taken in public in the local District Court. There is no provision in the Bill as drafted to remedy many of the defects with the current procedure. A provision such as an attachment of earnings mechanism should have been introduced as a minimum to ensure that we comply with our international obligations and no longer imprison people for non-payment of debts.