John Curran (Dublin Mid West, Fianna Fail)

My apologies for that interruption.

Section 26 is another standard provision in legislation of this type. Here, the authority will be required to introduce a superannuation scheme for its employees, and any such scheme will have to be approved by the Minister and laid before the Oireachtas. Any disputes in regard to superannuation benefits shall be adjudicated on by the Minister for Finance. In the event of a person who transferred to the new authority becoming eligible for superannuation benefits before the authority has introduced its pension scheme, the section provides that such benefits shall be calculated on the basis of the criteria that applied immediately prior to the dissolution of the office of commissioners.

It is envisaged that the new authority will work closely with other regulators and law enforcement bodies. Section 27 accordingly allows for disclosure of information by specified regulators, law enforcement bodies, or other organisations as may be prescribed by the Minister, relating to possible offences under this legislation, to the authority.

Section 28 is the converse of section 27 in that it allows the authority to share information with other regulators and law enforcement agencies, both within and outside the State, where it suspects an offence has been committed. Any such information may be used only for the purpose of detection, investigation or prosecution of an offence. The new authority will be expected to approach its business in a planned and strategic way. Therefore, under section 29, it will have to prepare on an ongoing basis a three-year strategy statement, which the Minister will lay before each House of the Oireachtas.

Sections 30 and 31 require the authority to prepare annual accounts and an annual report, respectively. The annual accounts will be subject to scrutiny by the Comptroller and Auditor General. Both the accounts and the annual report are to be laid before the Oireachtas.

Section 32 is a more general information-sharing provision than that contained in section 28, which is principally offence-related. Such information must be required by the relevant body for the performance of its functions.

I am endeavouring to ensure the authority will adhere to the principle of joined-up government and the avoidance of dual regulation. Section 33 allows for administrative, non-binding co-operation arrangements between the authority and other relevant regulators. Such arrangements are intended to minimise the potential for duplication of activities and enhancing the consistency of decisions across the various regulatory frameworks that are in place.

The Bill will apply to charities based in other jurisdictions that operate in Ireland. EU or EEA charities will not be required to have a place of business in the State. It is considered, therefore, that section 34, which allows for information sharing and co-operation with regulators in other jurisdictions, will prove extremely useful. Ministerial approval will be required for any such arrangements, and the Minister shall also prescribe the foreign statutory bodies concerned.

Section 35 enables the authority to consult those who are affected by the performance by it of its functions. As a follow-on to this section, section 36 provides for the establishment by the authority of consultative panels. It is envisaged that such panels will play an important role in developing proposals for consideration by the authority and engaging with the sector. The section also sets out the administrative arrangements and conditions that will apply to any such panels established. Each panel will be required to submit an annual report to the authority. This report shall be published on the Internet, as will any observations or proposals made by a panel relating to its terms of reference.

Section 37 enables the Minister to request the authority to establish a consultative panel to consider specific matters of relevance or interest to him or her. Equivalent terms and conditions will apply to such panels as would apply to a panel established by the authority other than at the behest of the Minister.

The Attorney General has, up to now, had a role as the "protector of charities". Such a role might involve initiating legal proceedings in defence of charities, participating in proceedings brought by others, or carrying out certain functions under the Charities Act 1961. In consultation with the Office of the Attorney General, in the context of a new statutory regulatory framework for charities, with a strong yet supportive authority as the centrepiece, it has been agreed that it is no longer essential for the Attorney General to have such a role. Therefore, section 38 transfers any relevant functions that were previously vested in the Attorney General to the new authority on establishment day. I thank the current Attorney General, Mr. Paul Gallagher, and his predecessor, Mr. Rory Brady, for their personal and positive engagement in the development of this Bill over recent years, and I also thank their officials.

Part 3 of the Bill sets out in greater detail how the authority will regulate the sector in practice. A key measure is the establishment, for the first time, of a register of charities. This is provided for in sections 39 and 40. This register is to be available to the public, including by electronic means.

Section 40 provides for any organisation that has qualified for charitable tax exemptions to be automatically deemed to be registered as a charity. This approach arose from my amendment on Report Stage in the Dáil and is designed to ease the administrative burden for the charities themselves, and for the authority, which would otherwise have had to deal with a huge volume of applications for registration within a very short period.

Under the arrangements set out in section 40, organisations whose charitable bona fides have been already examined and accepted by the Office of the Revenue Commissioners — it is estimated that there are in excess of 7,000 such organisations at present — will not be required to submit to the new authority the full range of material normally required from new applicants. Any relevant information may be provided by Revenue, or requested by the authority from the charity, if necessary.

Organisations that do not hold charitable tax exemptions will be required under section 39 to apply directly to the new authority for entry onto the register and to provide the information listed in subsection 39(5).

Members will note references in sections 39 and 40 to charities established in the State, charities established in another EEA state and charities established outside the EEA altogether, in the context of their providing information on their principal place of business to the new authority. For clarification in this regard, my legal advice is that it is not appropriate to insist that charities established in the EEA, although operating in this jurisdiction, have a principal place of business in Ireland. It is possible to insist on charities from outside the EEA having a principal place of business here. Therefore, there is a need for differentiation in terms of information to be provided by Irish charities and their EEA-based counterparts.

In the case of new applicants under section 39, the authority will have to make a decision as to whether the applicant is a charity before entering it onto the register, inform the applicant of its decision and state the reasons for its decision where an application is refused. It will be an offence for an applicant to knowingly provide false or misleading information to the authority. Any organisation on the register must inform the authority when any of the particulars relating to it entered on the register cease to be correct. The authority will be responsible for maintaining the accuracy and integrity of the register.

As part of the joined-up approach to regulation, the authority will have to inform the registrar of companies whenever a company applies for entry onto the register, as the Bill makes special provision for co-operation between these two bodies to minimise dual filing and regulation.

Section 41 makes it an offence for anyone to promote, or collect moneys, property or gifts for, a charity that is not on the register. This also applies to companies that are charities but which are not registered. The exception to this is where a decision is awaited in respect of an existing charity that has applied for registration under section 39.

Section 42 allows the authority to refuse to register an organisation where its name is the same or very similar to that of another charity on the register, where the name is considered misleading for the public, or where the name is considered offensive. The decision of the authority is subject to appeal. This section also provides that a registered charity cannot change its name without the consent of the authority. The authority may refuse to accept a name change for the reasons I have outlined.

It is critical in the interest of public confidence that the register accurately reflect the charities operating in the jurisdiction, and only charities. For this reason, the authority may remove an organisation from the register where, having consulted the Garda Síochána, it forms the view that the organisation is an excluded body. Similarly, an organisation can be removed from the register for changing its name without the consent of the authority, or for failure to comply with the various accounts, audit and provision-of-information obligations contained in the Bill. Where the authority forms the view that an organisation is not a charitable organisation any longer, or that a charity trustee is no longer eligible to hold such a position, it can apply to the High Court for consent to remove the organisation in question from the register. Whenever an organisation is removed from the register under section 43, the authority will enter onto the register a statement to this effect, and the reasons for its removal.

Section 44 allows the authority, in similar circumstances to those covered by section 43, to remove from the register organisations "deemed" to be registered under section 40. It is important that the authority have the necessary powers to treat both categories of charity in an equitable way.

Section 45 sets out the process of appeal for bodies whose application to register has been refused, or where a body is removed from the register. Appeals will be heard by the charity appeals tribunal, and the decision of the tribunal will be binding on all parties to the appeal, including the authority itself. The Minister is also given a reserve right of appeal against a decision by the tribunal.

One of the major difficulties facing the public these days is the problem of differentiating between genuine charities and other organisations that are not so altruistic. In this context, a matter of significant public interest has been the door-to-door collections of clothes that are presented as charitable, but whose charitable bona fides are questionable. These lucrative collections, though not currently illegal, have impacted greatly on donations of clothes to genuine charity shops. Section 46 is intended to address the practice of non-charities creating a perception that they are charities. Usually, such charities would be careful to avoid describing themselves as charities, but this section will make it an offence for any non-charity to describe itself or its activities in a way that would cause members of the public to reasonably believe they are charitable, irrespective of whether they actually use the word "charity".

The Bill provides that a charity must be established for charitable purposes only. Any organisation that only partially supports a charitable cause, while retaining a profit for itself would not be permitted to register. This section also requires any registered charity, unless specifically exempted, to describe itself as a registered charitable organisation in all public documents or in any other documentation that the Minister may prescribe. It will be much easier for the public henceforth to differentiate between charities and non-charities, and to make more informed choices in terms of donations. Section 46 also makes it an offence for a person to mislead the public as to where an organisation was established.

Section 47 requires charities, apart from those incorporated as companies that already have such an obligation under company law, to have available, on an ongoing basis, proper books of account for inspection by a person so authorised by the authority. It shall be an offence not to do so.

Section 48 places an obligation on charities, apart from those incorporated as companies, to prepare an annual statement of accounts in such form as may be prescribed by the Minister. Similarly, it shall be an offence not to prepare this statement of accounts.

Section 49 requires the Companies Registration Office to forward to the authority the annual return, as required under company law, of any company that is a charity and any documents attached thereto.

Section 50 places an obligation on charities, again apart from those incorporated as companies, to have their accounts either audited, in the case of charities with income or expenditure in excess of a threshold, which the Minister may prescribe, or examined by an independent person, in the case of smaller charities below the threshold. An "independent person" may be so prescribed by the Minister, and the nature of the examination shall be a matter for the authority. This graduated approach is intended to alleviate the burden on smaller charities. However, there is a reserve power where the authority considers it necessary or where a charity has failed to meet its obligations under this section for the authority to direct any charity to have a full audit or itself appoint an auditor. Where the authority incurs any costs arising from such an audit, they may be recouped from the charity concerned.

Section 51 allows the Minister to make regulations in respect of the duties and operations of auditors or independent persons under the previous section. It shall be an offence for any person not to co-operate with an auditor in respect of any such powers vested in him or her by the Minister.

As Members will expect, the authority will have a particular interest in the charitable activities organisations on the register. Section 52 provides that all charities, including those incorporated as companies, will have to provide an annual report on their charitable activities to the authority. The nature of the annual report will be prescribed in regulations by the Minister. I am committed to prior consultation with the sector on this matter. In general, charities will be required to submit their annual report, annual statement of accounts and the auditor or independent person's reports together to the authority. In the case of companies that are not required under company law to annex their accounts to their annual return to the Registrar of Companies, their annual report under this section should be submitted with their company law accounts directly to the authority.

Section 53 requires a charity to provide any information that the authority requests in writing to enable it to fulfil its statutory functions.

Increased transparency is one of the key aspects of the Bill. Section 54 requires the authority to make available to the public the annual report and any documents attached thereto. Given that the majority of charities fundraise from the public, it is considered that this provision serves a public interest. However, it is not considered that the same public interest applies to private charitable trusts which do not fundraise from the public, such as those set up by philanthropists. Therefore, although the authority will hold information in respect of such private trusts, it will not be available to the public.

Charity trustees play a key role in the operation of charities and the Bill puts in place certain provisions relating to the role of charity trustees. Section 55 lays out the circumstances under which a person may become disqualified from acting as a charity trustee. These include where a person has been convicted on indictment of an offence, has been imprisoned or where serious specified financial difficulties, such as bankruptcy, have arisen. Any person so disqualified may apply to the High Court for an order allowing him or her to act as charity trustee again. In the public interest, the authority is also required under this section to establish and maintain a register of disqualified persons.

Section 56 renders it an offence for a disqualified person to act as a charity trustee, though any actions undertaken by such an individual whilst so serving will remain valid. Any costs occurring to the charity or any benefits accruing to the disqualified person as a consequence of their actions shall be repayable to the charity.

Section 57 deals with the scenario where a person within a charity acts under the direction of a disqualified charity trustee. It shall be an offence for a person to so act unless he or she had reasonable grounds for not knowing that the person was so disqualified. On conviction under this section, the person will also cease to be qualified to serve as a charity trustee.

Section 58 follows from sections 56 and 57 in that it provides that a disqualified charity trustee convicted under section 56 shall be personally liable for any debts accrued by the charity as a consequence of their actions while illegally serving as a disqualified trustee. The same applies to a person convicted under section 57 of knowingly acting for a disqualified charity trustee. However, this section allows for the court to grant relief from such personal liability where it is considered appropriate.

The sections that follow deal with the reporting of offences or suspected offences. Section 59 contains a provision requiring relevant persons to report to the authority in writing where he or she, in the course of carrying out their duties, forms the opinion that an offence under the Criminal Justice (Theft and Fraud Offences) Act 2001 has been, or is being, committed. A "relevant person" includes an auditor, a charity trustee, an investment business firm or a person involved in preparing the annual report.

Section 60 is a technical provision allowing for qualified privilege in respect of any report prepared under the previous section. Section 61 protects persons who report a suspected offence under either this legislation or under the Criminal Justice (Theft and Fraud Offences) Act 2001 from civil liability once they have acted in good faith.

Under section 62, specific provisions are in place to ensure that an employee may not be penalised by his or her employer for notifying the authority in good faith of a suspected breach of the legislation within the organisation. There shall also be a presumption in any employment-related proceedings that the employee acted in good faith unless otherwise proved. It is important, however, that persons are not permitted to deliberately make false statements to the authority and section 63 makes it an offence to do so.

Part 4 of the Bill sets out the investigative powers of the authority and the rights of the authority to seek documentation from charities. Under section 64, the authority may appoint an inspector to carry out investigations and to report to the authority on the investigation. A later section, namely, section 71, provides that any such report may be evidence in any proceedings arising.

In section 65, charitable organisations, including trustees, or other persons believed to be in possession of relevant information, are required to co-operate with any investigation in terms of appearing before an inspector and providing documentation or records to an inspector on request. Where reasonable grounds for concern exist, the inspector may also request records of bank accounts held by a charity or a trustee.

Section 66 provides that any report, or interim report, submitted by an inspector to the authority may be sent by the authority to specified persons or organisations, or published in full or in part.

Under section 67, any expenses incurred by the authority in relation to a successful investigation may, subject to an order of the High Court, be repaid to the authority.

Outside the specific context of an investigation, the authority may from time to time require books, documents or records from a charity or from a person believed to be holding such records and section 68 makes the necessary provision. It will be an offence not to co-operate with such a request for information from the authority, although section 72 provides that legal privilege will apply to the production of certain documents under this part of the Bill.

The authority may also, under section 69, apply to the District Court for permission to enter and search premises where a charity does not comply with a request for information under the previous section. It shall be an offence not to co-operate with such a search. Any documents taken by the authority will be subject to certain restrictions in terms of their subsequent use and may only be passed on to the specific "competent authorities" listed in the section.

In my opening comments I said that the Bill is founded on the principles of reasonable and proportionate regulation and enforcement, given that so many charities are small and volunteer-led. It is not always appropriate to issue proceedings for what may only be minor, or unintended, breaches of the legislation. In this regard, under section 73, the authority will have the option to impose intermediate sanctions on an organisation rather than initiate full proceedings. Examples of such scenarios include where an organisation has failed to comply with its reporting or accounting obligations under the legislation. Such intermediate sanctions might involve the removal of an organisation from the register until it complies fully with its obligations or entering a statement of the contravention on the register.

As I indicated, the authority will take on the role of "protector of charities". In this context, section 74 allows the authority, where it considers that a charity or its property is at risk and where it is considered to be in the best interests of the organisation, to apply to the High Court for either an interim, interlocutory or permanent order to, for example, suspend, remove or even appoint a trustee.

In the case of a dispute concerning a decision of the authority, Part 5 provides for an extra-judicial appeals mechanism, to be known as the charity appeals tribunal, to help to avoid the costs associated with going to the High Court. This dispute resolution mechanism is intended to be accessible by all charities, irrespective of their size.

The provisions relating to the tribunal are set out in sections 75 to 79. It will have five members and membership will include persons with a legal background and persons with expertise relating to charities. The Bill allows the tribunal to develop its own procedures, subject to ministerial consent. Its proceedings will generally be in public, although a "non-disclosure" provision is available if required. Decisions of the tribunal may be appealed to the High Court on a point of law.

The new authority will also be required to carry out the functions under the Charities Acts 1961 and 1973 currently carried out by the Office of the Commissioners of Charitable Donations and Bequests for Ireland, which is to be dissolved on establishment day. Part 6, consisting of sections 80 to 87, contains fairly standard technical provisions which allow for the transfer of statutory functions from a dissolved body to a new authority. They deal with, for example, the transfer of land or property and the transfer of any business in hand to the new authority from the commissioners.

I acknowledge and pay tribute to the Office of the Commissioners of Charitable Donations and Bequests for Ireland. The chairman, the Honourable Mr. Justice Francis D. Murphy, and his fellow commissioners have made a great contribution to public service in Ireland by willingly providing their considerable expertise without charge to the State for many years. One of the significant challenges facing the new authority will be taking on the role of the commissioners.

On Report Stage in the Dáil, I added two new sections to the Bill relating to charity trustees. The first, in section 88, will allow trustees and persons personally connected with trustees to receive remuneration in respect of non-trustee services provided to a charity. The second provision, in section 89, allows charities to take out indemnity insurance in order that charity trustees are not personally liable for any losses accruing to the charity as a consequence of the performance of their duties. Both new sections were broadly welcomed.

As regards the remuneration provision, charity trustees are not currently permitted to receive any remuneration from their charity for non-trustee services provided. Under my amendment, a trustee may provide professional or other services unrelated to their trustee role to the charity, perhaps for a fee less than the going rate. Certain controls are in place to prevent abuse of the privilege but the bottom line is that remuneration may only be paid where it is in the best interests of the charity and it must not be for trustee services.

The fact that charity trustees are currently potentially personally liable for any losses accruing to the charity as a consequence of the performance of their duties acts as a disincentive to potential charity trustees by leaving voluntary charity trustees exposed to an unreasonable personal risk. The provisions of section 89 seek to address this issue and thus encourage citizens to take on the role of charity trustee.

Part 7 updates certain provisions of the Street and House to House Collections Act 1962. As Members will appreciate, the nature of fundraising has developed considerably since 1962. For example, the concept of collecting "promises of money" through direct debits or standing orders did not arise in 1962, whereas it is now very important to charities in providing a steady and secure income stream. Sections 90 to 93 in Part 7 will bring this method of fundraising within the collection permit regime administered by the Garda Síochána for the first time, as well as enhancing the security and transparency of collections generally. This will serve the interests of legitimate charities and increase public confidence. These sections try to ensure that charities, irrespective of the method of fundraising used, whether cash or non-cash, have reasonable access to permits. The definition of the word "money" in the 1962 Act has also been broadened beyond mere notes and coins. Another development in the area of fundraising has been the practice of selling items or tokens for a specific price. The Bill will also address this matter.

Given that fundraising practices of charities are constantly developing, the regulation of the operational aspects of fundraising does not always sit well within the rigidity of primary legislation. To address this issue, my Department is developing with the sector an approach to regulate, through non-statutory agreed codes of practice, the operational aspects of charitable fundraising. However, section 94 gives the Minister a reserve power to make statutory regulations on fundraising should the non-statutory approach not succeed.

The final section of the main body of the Bill, section 95, exempts social finance lenders from supervision under the financial services regulatory elements of the Markets in Financial Instruments and Miscellaneous Provisions Act 2007. They will instead be regulated by the authority, thus avoiding dual regulation.

The First Schedule sets out the legal status of the authority, the appointment of members of the authority and the procedures to be followed by it. The authority will have a minimum of nine and a maximum of 15 members. At least three members will have a legal background and provision is also made for persons with experience of charitable work to serve as members. Members will be appointed by the Minister with the approval of the Government.

This Schedule sets out how and why members of the authority might be removed from office. It shows how conflicts of interest involving members or members of staff should be handled and allows the authority to establish committees to assist and advise it or perform functions that might be delegated to it. The Second Schedule is purely technical. It is a table showing legislation that is repealed by the Bill.

Members will appreciate that this Bill is substantial. I express my thanks to the House for the opportunity to give what was perhaps an unavoidably lengthy overview of the legislation. Senators agree, however, that the work of charities is too important to be left bereft of any real scrutiny and that this is very necessary legislation. As I stated, the Bill was welcomed by all sides in the Dáil and the debates were positive and constructive. I acknowledge the contributions made by Deputies Michael Ring and Jack Wall and colleagues who stood in for them. Many of the contributions were technical and required a great deal of work. The debate was highly constructive and I am confident Senators will engage in the forthcoming discussions on a similar basis. I commend the Bill to the House.