Thursday, 11 June 2009
Aviation (Preclearance) Bill 2009: Committee Stage
I welcome the Minister, Deputy Dempsey, to the House. Amendment No. 1, which is a Government amendment, has also been tabled in the names of Senators Ryan, Alex White, McCarthy, Prendergast and Hannigan. I ask Senator Ryan to move the amendment.
Having considered further the provisions of sections 3 and 5 of the Bill, I have decided to propose to amend the Bill to create the new subsections (3) and (4) to section 3. That is what this amendment is about. The proposed subsection 3(3) provides that in proceedings regarding a failure to make an accurate written declaration of all goods required to be declared, it shall be a good defence to show that the traveller had reasonable grounds for believing the declaration was duly made in accordance with the provisions of paragraph 3(1)(b). This is to make provision for persons making an honest mistake in filling out the declaration. It is a further protection for the individual. The proposed subsection 3(4) would qualify the provisions of subsection 3(2), which creates an offence in respect of the making of an inaccurate written declaration. The proposal is that in situations where the traveller would otherwise be subject to the administrative penalty on post-clearance where the traveller agrees to pay the sum requested as a precondition of the grant of preclearance, as in subsection (5)(a), proceedings would not be entered into against that traveller. The purpose of the amendment is to ensure the traveller is not penalised twice for the same action. Both of those provisions are added protections for the traveller.
I move amendment No. 3:
In page 7, subsection (2), between lines 21 and 22, to insert the following:
"(b) not require the person to remove any garment other than an outer garment save in the presence of and subject to the directions of an Irish law enforcement officer,".
This amendment is in the section describing the functions of preclearance officers, who are officials from the US side. We propose that instead of including the phrase proposed in paragraph (b), "have due respect for the person being searched", we should include the phrase "not require the person to remove any garment other than an outer garment save in the presence of and subject to the directions of an Irish law enforcement officer".
The Bill, as drafted, would allow US personnel to strip search Irish citizens on Irish soil without supervision or control. The sole safeguard is the meaningless one that the search must show "due respect for the person being searched". The Minister and his officials may believe this is adequate but the Labour Party does not believe so. We need an express prohibition on strip searching, except in the presence of an Irish law enforcement officer. That is a very reasonable requirement to include in the legislation and I ask the Minister to accept it.
From my understanding of the Bill, I do not believe it confers the capacity on a preclearance officer to engage in strip searching, as Senator Ryan described. That said, his amendment is a good idea because it addresses our concerns, raised on Second Stage, regarding the fact that the powers of the preclearance officer will be quite extensive. Those powers will be wielded under the terms of what is in effect diplomatic immunity. My understanding of the thrust of Senator Ryan's amendment is that it will ensure the power of the preclearance officer can only be wielded in the presence of an official of the Irish State. The amendment will improve the operation of the Bill on the ground and I support it for that reason.
I understand the concern behind amendments Nos. 3 and 4 but amendment No. 3 would appear to do the opposite to what the Senators intend. The intent of the legislation is that there be limited searching powers for preclearance officers and provision in this regard is included in the Bill. The proposed amendments relate to the functions of preclearance officers, specifically in regard to the conduct of searches subject to the consent of the traveller. I refer to paragraph 5(1)(d). What the Senators propose could have the effect of broadening the range of search powers envisaged for preclearance officers under the agreement itself. The range of search powers afforded to the Irish law enforcement officers under section 6(1) is intentionally broader than those powers afforded to the preclearance officer. Therefore, the proposed amendments do not serve any useful purpose. We are making a distinction.
Senators should note that it is not intended, nor is it provided for in the Bill, that the US preclearance officers would have the power to strip search or anything else. If we accepted amendment No. 3, there would be a risk that the preclearance officers would actually interpret the legislation as affording them wider search powers than are now intended. I know that is not the intention of Senator Ryan. In plain English, the intent is that the preclearance officers would be able to conduct a search, perhaps by removing outer garments, but that if anything further had to happen, it would have to be in the presence of an Irish law officer, a garda.
I do not accept the Minister's view on that. We are just asking that there be a specific requirement stating, "other than an outer garment save in the presence of and subject to the directions of an Irish law enforcement officer". I do not see the downside of including this. I do not understand the Minister's view that this provision, rather than amendment No. 4, would give the US side greater powers. All we are asking is that strip searching be precluded specifically.
With regard to amendment No. 4, the protection we require pertains to the functions of preclearance officers. The wording associated with the functions of Irish law enforcement officers is not used in respect of the functions of preclearance officers. All we are asking is that there be consistency in terms of the requirements in this regard in the relevant sections.
The Dail Divided:
For the motion: 19 (Ivana Bacik, Paul Bradford, Jerry Buttimer, Ciarán Cannon, Paudie Coffey, Paul Coghlan, Maurice Cummins, Paschal Donohoe, Frances Fitzgerald, Michael McCarthy, David Norris, Joe O'Reilly, Joe O'Toole, Feargal Quinn, Eugene Regan, Shane Ross, Brendan Ryan, Liam Twomey, Alex White)
Against the motion: 24 (Dan Boyle, Martin Brady, Larry Butler, Ivor Callely, John Carty, Donie Cassidy, Maria Corrigan, Mark Daly, John Ellis, Geraldine Feeney, John Gerard Hanafin, Cecilia Keaveney, Terry Leyden, Marc MacSharry, Brian Ó Domhnaill, Labhrás Ó Murchú, Francis O'Brien, Denis O'Donovan, Fiona O'Malley, Ned O'Sullivan, Ann Ormonde, Jim Walsh, Mary White, Diarmuid Wilson)
Tellers: Tá, Senators Michael McCarthy and Brendan Ryan; Níl, Senators Labhrás Ó Murchú and Diarmuid Wilson.
Amendment declared lost.
This is a technical amendment to correctly align the reference to the preclearance officer in line 31 of page 7 to ensure there is no doubt that the powers of the preclearance officer refer to the entirety of subsection (3) as intended. The amendment clarifies that issue.
Amendments Nos. 6 and 7 are related and alternative to each other and they may be discussed together by agreement.
Government amendment No. 6:
In page 8, subsection (1), lines 17 to 49 and in page 9, lines 1 and 2, to delete paragraph (b) and substitute the following:
"(b) any person (whether or not a traveller) is in possession of any goods (including a weapon) the possession of, or the export of which, is controlled or prohibited in the State, or otherwise poses a threat to the safety of officers or other persons in the preclearance area,
may, without warrant—
(i) search the person and, if he or she considers it necessary for that purpose, detain the person for such time as is reasonably necessary for carrying out the search, provided that—
(I) except where the threat posed is immediate—
(A) the officer conducting a search of a person being detained shall ensure, so far as practicable, that the person understands the reason for the search and that it is conducted with due respect for the person being searched,
(B) a person being detained shall not be searched by an officer or person of the opposite sex, and
(II) where a search of a person being detained involves removal of clothing, other than headgear or a coat, jacket, glove or similar article of clothing, no officer or person of the opposite sex shall be present, unless either that person is a medical practitioner designated by the officer conducting the search, or the officer considers that the presence of that person is necessary for the protection of the person carrying out the search, or is otherwise expedient, and
(ii) examine (by opening or otherwise), seize and detain anything found in the course of a search under this section that appears to him or her to be something that might be required as evidence in proceedings for an offence.".
The first purpose of the Government's amendment No. 6 is to correctly align the words "may without warrant" in line 21 of page 8 so that there is no doubt that they refer to the entirety of subsection (1) as intended. That is a technical change.
There is a further proposed change at paragraph (1)(B)(II) clarifying the reference to a designated medical practitioner. The amendment specifies that the medical practitioner would be designated by the officer conducting the search. As the section stands it is unclear as to who would make that designation.
The Labour Party's amendment No. 7 refers to the functions of Irish law enforcement officers and specifically the range of search powers to be afforded under the relevant section of the Bill, which is section 6. The specific powers arise where a person is reasonably suspected of making a false declaration of goods or of being in possession of controlled or prohibited goods in the State, or is reasonably suspected of otherwise posing a threat to a person in the preclearance area. It is in those circumstances the specific powers arise. In those circumstances an Irish law enforcement officer may search the person without warrant and detain the person for such time as is reasonably necessary to carry out the search subject to certain conditions. Where a search of a person being detained involves the removal of clothing other than the general outer garments, no officer or person of the opposite sex shall be present unless either that person is a medical practitioner or the officer considers the presence of that person is necessary for the protection of the person carrying out the search or is otherwise expedient.
Senator Ryan proposes that this final phrase be deleted but the Department's legal advice is that the phrase should be retained. Its purpose is to provide the appropriate level of protection for the individual in certain circumstances, for example, where the person being searched is a minor. It is necessary to retain the wording "or is otherwise expedient" for the protection of a minor or in certain other circumstances.
I cannot accept amendment No. 7 on the basis that acceptance of it would remove a protection for a minor.
No, it does not. I understand the Senator's concern, but the intent in the legislation, as is clearly stated, is that this cannot happen with a person of the other sex present except where it is otherwise expedient. The inclusion of the words "otherwise expedient" does not remove the previous obligation, it just adds a protection for people such as minors. I understand the Senator's point but the inclusion of this wording is necessary for those kinds of circumstances.
I move amendment No. 8:
In page 13, subsection (4), line 31, to delete "Where" and substitute the following:
"Without prejudice to any other power of a Minister of the Government, where".
We propose the inclusion of the above wording. The power to order the removal of a preclearance officer exists only where the officer has abused his position, as outlined in the section. Clearly, this must be without prejudice to the general power of the Government to order the departure of any foreign official or alien for such reasons as they consider appropriate. I hope the Minister will accept this amendment.
This amendment arises under section 13, which provides for privileges and immunities for citizens of the USA who are assigned to carry out preclearance functions. Section 13(4) provides that the Minister may, after consultation with the US, require the departure from the State of a preclearance officer in certain circumstances, which are outlined. The provision in the Bill reflects the relevant articles of the intergovernmental agreement to which both parties are bound and, as such, there is no necessity to refer to any other power of a Minister or Government. We have an international agreement on this. The wording of the amendment does not remove any of the intent of either the agreement or the legislation and is not objectionable to me. I can accept this amendment as it does not raise a legal difficulty.
I move amendment No. 9:
In page 14, subsection (2), line 34, after "officer" to insert "(other than a member of the Garda Síochána)".
An assault on a member of the Garda Síochána is already punishable by seven years' imprisonment under section 19 of the Criminal Justice (Public Order) Act 1994, as amended by section 185 of the Criminal Justice Act 2006. The Bill would introduce a lower sentence of five years for such assaults, which would be undesirable. To maintain consistency, we need to exclude gardaí from the new offence under this Bill and maintain the current provisions.
I thank the Senator for his amendment. He was correct in stating there is already a provision under existing legislation with regard to this issue. The Criminal Justice (Public Order) Act 1994 outlines the penalties for the offence of assaulting a member of the Garda Síochána, which carries a higher penalty on indictment than that outlined in this Bill. I agree with the Senator that there is no need for the anomaly that results from this and I accept the amendment.