Eoghan Murphy (Dublin Bay South, Fine Gael) | Oireachtas source

I move amendment No. 84:

In page 19, between lines 38 and 39, to insert the following: "(17) An application under subsection (7) shall be made to a judge of the District Court for the time being assigned to the District Court District within which the person in respect of whom the application is made resides or carries on any profession, trade or business.

(18) An application for a warrant under subsection (13) shall be made to a judge of the District Court for the time being assigned to the District Court District within which the premises in respect of which the application is made is situated.".

I will try to cover them all in one intervention at the beginning and then we can get into the detail. Government amendment No. 84 technically amends the new section 148S of the Act, which is being inserted by section 18 of the Bill. This is a technical amendment to legally provide territorial jurisdiction to the District Court for the purposes of making court orders to generally enforce compliance with the requirements of an authorised officer under the new RTB sanctioning regime. Government Amendment No. 85 is a consequential technical amendment.

The Government cannot support amendment No. 136, which proposes to delete the new section 148Z, which provides for a right to appeal a RTB sanction decision in the Circuit Court and that a RTB sanction decision must be confirmed by the Circuit Court, either on appeal under section 148AA or on foot of direct application, on notice to the landlord, for confirmation by the RTB under section 148AB. The new section 148Z is a central legal requirement to enable the empowerment of the RTB to operate its new administrative sanction regime. I accept that where court involvement is necessary, the courts process will add to the length of the overall sanctioning process but I am following the advices of the Attorney General on this important legal point. It is important to point out that a decision to impose a sanction is not a given. A decision maker can decide not to sanction and court involvement is not then required. I do wish to stress that on the ground, court involvement need not delay redress for the tenant. The decision on the nature of a sanction to be handed down takes into account the actions of a landlord after the RTB issues an investigation notice.

For example, under section 148AD in determining the nature of the sanction, the Circuit Court or decision-maker may have regard to, for example, whether the landlord acknowledges the improper conduct, the extent of any failure by the landlord to co-operate with the investigation, any steps taken by the landlord to remediate any loss suffered or costs incurred, the duration of the improper conduct, the recurrence, if any, of the improper conduct, the continuation of the improper conduct after the landlord has been notified of the investigation, the extent and timeliness of any steps to end the improper conduct, any steps taken to remedy the consequences of such conduct, and whether similar improper conduct occurred previously. There is good scope at the earliest juncture for a landlord to acknowledge and stop the improper conduct and remedy the matter to hand. The incentive is there to limit the sanction to be imposed.

I also wish to highlight that proceedings need not go all the way to confirmation by the court. Landlords have a number of opportunities during the process. For example, section 148W(3) provides that, where a landlord acknowledges improper conduct, the decision-maker shall on receipt of such acknowledgement determine what sanction, if any, is to be imposed. This provision applies to both tenant complaint initiated and RTB own volition investigations. Section 148X(4)(a) provides that the decision-maker may, if he or she is satisfied that improper conduct has occurred, impose a sanction on a landlord. This is an enabling provision. It does not follow that the decision-maker must impose a sanction, even if improper conduct has occurred. The decision-maker must continue the sanctioning process only if he or she wants to impose a sanction. Separately, 148X(4)(c) provides for complaints to be dismissed or for no further action to be taken if the decision-maker is satisfied that no improper conduct has taken place. Section 148X(5) provides that where an acknowledgement by a landlord is received under 148W(3) as referenced above, the decision-maker may decide to impose a sanction on the landlord as he or she thinks fit in the circumstances of the case. This implies that the decision-maker is not obliged to impose a sanction. Under 148Z(2), the decision to impose a sanction requires a Circuit Court confirmation. The Bill does not provide for court confirmation, however, if the decision is to impose no sanction. Circuit Court confirmation is legally required to publish the detail of any sanction and to give effect to any sanction.

I will also be moving amendment No. 145 to provide technically territorial jurisdiction to the Circuit Court for the purposes of an appeal by a landlord under section 148AA(1) of a sanction imposed.

The Government cannot support amendment No. 146, which proposes the deletion of the new section 148AB requiring the RTB to apply to the Circuit Court to confirm its sanctioning decision.

I will also be moving amendment No. 150, which concerns the granting of territorial jurisdiction to the Circuit Court to deal with applications made by the RTB under section 148AB(1) and related matters. Again, this is a legal necessity for the operation of the new RTB administrative sanctioning regime.

Section 168 of Act of 2004 will be amended by amendment No. 175, which inserts a new paragraph (da) into subsection (2) of that section 168. Subsection (2) of section 168 lists the categories of person to whom a section 168 indemnification can be applied by the RTB. Amendment No. 175 includes authorised officers and a decision-maker appointed for the purposes of the new RTB sanctioning regime in the list of indemnified persons.

All of the amendments speak to the new sanctioning regime, how it is to be applied, the role of the Circuit Court in that regime, and the different points in time at which the process can come to an end. The decision-maker may decide that there is nothing to put forward because there was no breach or because the reason the sanction was imposed either has been remediated or compensation has been made to the aggrieved party or both.