Jim Walsh (Fianna Fail)

I welcome this progressive Bill which deals with an area that has come into sharper focus as a result of the economic downturn and the difficulties people face in paying fines and debts. The Bill distinguishes for the first time between those who have the capacity to pay and those who willfully refuse to pay them. I think this will be viewed as an equitable measure.

The indexation provision, which is one of the cornerstones of the Bill, is interesting. We have in the recent past discussed the erosion of the deterrent power of fines due to inflation. Indexation is to be welcomed for taking account of that lacuna in the law. I note that the schedule to be produced will give minimum fines in some instances and maximum fines in all instances. In that regard, perhaps it would have been useful had the Bill had a Schedule which indicated what those fines were. I would like to think there would be Oireachtas scrutiny of the application of the indexation from time to time so that they can be looked at and that there would be a mechanism for the Oireachtas, in conjunction with the Minister, at least to review the relevance of fines for offences. The concept is good in that the fines will be categorised. I suppose that will give rise to some anomalies initially and I note there is provision in the Bill to deal with that. It is interesting that the Prohibition of Incitement to Racial Religious or National Hatred Act 1989 was taken as one of the examples in the briefing documentation.

It seems good that ability to pay, an issue to do with the Scandinavian experience, of which I heard Senator Quinn be an exponent, not only today but previously, should become a factor in the determination of the fine. The example he gave shows to some extent an injustice in it whereby somebody could be fined up to €250,000. In our system it is good that while a judge will have discretion to apply a fine, he or she will not be able to exceed the maximum specified in the schedule.

However, I would hope in the exercise of judicial discretion that ability to pay would be only one component of a judge's determination of the fine. I apologise for talking to the officials earlier. I was merely trying to clarify a particular query. Where a person is caught committing a speeding offence, for example, a fairly common offence which might illustrate the point quite clearly, and going at 120 mph or 130 mph, which is obviously a particularly dangerous speed, the judge might veer towards the minimum of the fine specified for that offence because the person does not have financial resources, whereas a person of good financial resources who is caught exceeding the speed limit, perhaps by only a couple of kilometres per hour and marginally over the speed limit, ends up with the maximum fine. It would appear there could be potential for an injustice in that regard. The nature and extent of the offence should really be the primary determining factor in the penalty imposed. One would hope that judicial discretion would iron that out, but I wonder whether within the framework of the Bill there should be recognition of and regard for that point. If ability to pay becomes the overriding criteria, there is a risk we could end up bringing the law into disrepute. It is something I would ask to be looked at. In general, I am not opposed to the concept of ability to pay but the manner in which it is applied must be monitored to ensure it operates without creating further anomalies or weaknesses within the legal system.

I agree, as I often do, with a point made by Senator Quinn about the attachment to earnings. He is one of the sounder Members of this House. On the alternatives to imprisonment, I note a judge will have powers to appoint a receiver where somebody has not responded over a period to his or her various obligations received from the courts to pay fines. I would make two points in that regard. The first is that the operation of the sheriff scheme has been effective and there have been good examples of it working in practice. However, there have been other examples which would be the corollary of that. I would have concerns about the heavy-handedness of the powers we give to persons in these positions and the risk of them taking impromptu action which may fail to take all aspects into account and may cause an injustice to the person involved. I do not see it in the Bill, but I would like to think that where the State assumes to itself what are draconian powers, there should be protection for the citizen. Where those powers are exercised wrongly and excessively by the authorised officers, the citizen offended in this regard should have a right to fairly significant compensation so that there is an onus for a measured and reasonable exercise of such draconian powers. Perhaps the Minister of State, Deputy Moloney, will be able to point out where this is dealt with in the legislation.

The second point is that I would have thought it better to have that power trigger later. Community service and attachment to earnings are issues which perhaps should come prior to the exercise of that provision in the Bill to appoint a receiver, that the involvement of a receiver would be a last resort. It strikes me there is a cost involved. The fines may not be that high but it could be quite expensive to get somebody involved directly to deal with this. It is something I would like us to look at.

I will finish on this point about community service. I note there is significant spare capacity in that area. It goes back to many of the discussions in this House about the costs of public service. This will help to shore up that excess capacity within the probation and welfare service which does good work to supervise community service. I note that if it can be increased fourfold, there is obviously significant excess staffing. However, it is an area which we could use to recover the costs of the fines, not only through the work but perhaps by placing persons in jobs where the remuneration would come back to whoever in the State was collecting the fines.