Michael McDowell (Independent)
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I note that the term “relevant offence” includes an offence under section 3 of the Non-Fatal Offences against the Person Act 1997 - assault occasioning harm. It is a wide category. Effectively, anything that is not a non-technical assault is an assault occasioning harm within the meaning of that Act. One consequence of stating it is a relevant offence, as will appear from the next section, is that a person who is accused of engaging in an assault occasioning harm will, in the circumstances described in section 2, be liable to be punished and convicted in Ireland in certain circumstances.

On Second Stage the Minister told the House that it did not apply simply to crimes against women, who are the primary object of protection under the Istanbul Convention, but also to men. I can see why that would be necessary, but we should try to confine the offences under section 3 to those involving domestic violence within the meaning of Article 3 of the convention. It states: “domestic violence shall mean all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim”. That narrows it down. However, if a fellow throws a punch in a pub in Brisbane at a person with whom he has no or never had a domestic relationship of any kind within the meaning of the Act, does that mean he can be arrested for it in Dublin and tried as if he had committed the offence in Ireland?

David Norris (Independent)
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Where would he be tried?

Michael McDowell (Independent)
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Here in Ireland. One of the problems with that is that if one is broadening criminal jurisdiction to cover such cases, the question which automatically occurs to me is choice of venue. Under the Criminal Law (Jurisdiction) Act 1976, there is provision for persons to opt for trial in Northern Ireland, for instance. In other words, there is the option of being tried in the place where the offence is alleged to have occurred. It seems strange to me that we do not appear to be giving any such right to opt to be tried in a foreign state under the Bill or to opt to have the matter investigated in a foreign state where the witnesses might be resident.

I fully support the Istanbul Convention and know exactly what it is about. I am concerned that any act of assault which involves harm, can include pain, loss of consciousness, a bruise or a mark will give rise to territorial jurisdiction in Ireland in respect of certain people. Is that a good idea? Will the Minister explain why he has cast the net so wide in respect of offences which are 1 million miles away from those covered by the Istanbul Convention?

David Norris (Independent)
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With his usual frenzied intelligence, Senator McDowell has filleted out a rather curious little byway of the law. I agree with him as far as the question of examining the evidence is concerned. Surely the most appropriate place for the investigation to take place is where the crime took place. On the other hand, with regard to having the case in some place like Australia, for example, I do not see any reason the Irish taxpayer should be expected to pay the airfare for somebody to be tried in that jurisdiction. The investigation should go on in Australia or wherever the crime took place but I do not see any reason the trial cannot take place in Dublin.

Charles Flanagan (Laois, Fine Gael)
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This is a short but nevertheless important Bill that we dealt with by way of Second Stage prior to Christmas. It is the final piece in the patchwork that will enable this country to sign the provisions of the Council of Europe convention on the prevention and combating of violence against women and domestic violence, known as the Istanbul Convention. The definition of "convention state" is clear in the Bill, namely, a state other than Ireland that is a party to the convention. The Bill deals primarily with combating violence against women and domestic violence. I hope that Seanadóirí will assist in the swift passage of legislation and urge them accordingly.

David Norris (Independent)
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The Minister did not answer Senator McDowell's query. I was just wondering if he could do so but I see he is not going to.

Martin Conway (Fine Gael)
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My contribution is an appeal and I wish to echo in very forceful terms what the Minister outlined at the end of his remarks. This legislation is necessary for Ireland to meet its international obligations and ratify the Istanbul Convention. I sincerely hope that all Members of this House will appreciate its urgency. Violence against women, as we will all agree, is a horrendous crime. If there are small or technical elements in the legislation that people have issues with, I suggest they introduce an amended Private Members' Bill in due course to sort them out. This legislation is to ratify our international obligations and to support and assist women who find themselves in a violent situation. As legislators, we have a duty not to delay it. No amendments have been tabled on Committee Stage. If people were exercised about elements of it, they had the option of putting down amendments on Committee Stage. I appeal to Senators not to delay the Bill but to let it pass as quickly as possible.

Kieran O'Donnell (Fine Gael)
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We are a short time into the debate and everyone wants this legislation to proceed as quickly as possible. Is the question agreed?

Michael McDowell (Independent)
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I asked the Minister to explain why he was casting the net so widely in respect of section 3 of the Non-Fatal Offences Against the Person Act and I have not received a response. I take the Minister's point that this is important legislation. I also take Senator Conway's point that it is important that it be put through quickly. I am just asking some questions about it. If the implication of the Minister and Senator Conway is that I am simply to say I have no objection, that we should just pass the Bill and that I should not contribute or ask any questions about it because it must become law without any further discussion, so be it. I am not trying to delay this legislation. I would not have been here today were it not for the fact that other business was on and when I saw this Bill was before the House, I started reading it. It was only at that stage that a number of aspects occurred to me as requiring some degree of explanation rather than simply acquiescing and rubber-stamping it.

Kieran O'Donnell (Fine Gael)
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Senator McDowell wishes to comment rather than to make amendments.

David Norris (Independent)
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He might table amendments on Report Stage.

Kieran O'Donnell (Fine Gael)
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Does the Minister wish to comment?

Charles Flanagan (Laois, Fine Gael)
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No, I think Senator McDowell's motives are quite clear. Of course he is entitled to make comment for whatever length of time he deems fit on the legislation. Whether he regards it as important or otherwise is immaterial to me. I will point out, however, that there is an exception in respect of section 2 of the Non-Fatal Offences Against the Person Act because it was deemed to be of such a lower order as not necessary of being covered under the international convention. Offences under sections 3, 4, 5, 9 and 10 are covered, having regard to their seriousness and to the application of the extraterritorial jurisdiction.

Michael McDowell (Independent)
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The remark made by the Minister, in claiming that he has worked out my motive, is deeply offensive. I would not have read this Bill were it not for the fact that I was engaged to come here this evening. I would not have had the opportunity because I had other things to do. I am just making the point that I am entitled to make short observations about the scope of a Bill.

Charles Flanagan (Laois, Fine Gael)
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That is what I accepted. However, I know what the Senator's motivation is.

David Norris (Independent)
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The Minister does not. How could he know? I would like the Minister to explain to the House how he knows Senator McDowell's motivation.

Kieran O'Donnell (Fine Gael)
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Senator Norris should resume his seat.

Martin Conway (Fine Gael)
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It is interesting that Senator McDowell said he would not even have read the Bill but that he was here for other reasons this evening.

Kieran O'Donnell (Fine Gael)
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Senator Conway must resume his seat.

Martin Conway (Fine Gael)
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I was making a point of order, actually.

Kieran O'Donnell (Fine Gael)
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Senators, please, this is a relatively straightforward Bill. Members are entitled to speak to the section. There is no issue with that. As Acting Chairman, I would like to see people behave in a civilised way so we can get through every aspect of the Bill. Can I take it that the Minister has dealt with Senator McDowell's question on the first section?

Michael McDowell (Independent)
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Just briefly in regard to-----

Kieran O'Donnell (Fine Gael)
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I want it very brief. We need to move on.

David Norris (Independent)
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Who are you to want it very brief?

Michael McDowell (Independent)
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The Minister has partly dealt with it. Section 2 of the Non-Fatal Offences Against the Person Act is the ordinary, simple assault. If the Acting Chairman pushed me aside-----

Kieran O'Donnell (Fine Gael)
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Senator, please.

Michael McDowell (Independent)
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If I am going to be trampled down here, we are going to have a very long debate.

Kieran O'Donnell (Fine Gael)
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The Senator is not going to be trampled down. He is entitled to speak. I asked him, and I was being very fair, if the Minister had dealt with his question.

Michael McDowell (Independent)
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He said that section 2 is a technical assault. If I push a garda or even put my hand on a garda and tell him to push away, that is an assault even if no harm is done.

David Norris (Independent)
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That is a very reasonable point.

Michael McDowell (Independent)
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After that, if I give somebody a thump and it causes that person pain, it is a section 3 assault. That is the difference.

Charles Flanagan (Laois, Fine Gael)
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It is covered.

Michael McDowell (Independent)
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The point I am making is this. Was it necessary to cast this Bill so wide that every such incident anywhere in the world involving any Irish citizen or any person who is ordinarily resident in Ireland should now become prosecutable in the Irish courts? I do not see why that is an unreasonable point to make and I do not see where the policy has been explained as to why that should now be part of our criminal law.

Charles Flanagan (Laois, Fine Gael)
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In accordance with mutual legal assistance in other jurisdictions, in the event of there being a more serious assault perpetrated by an Irish citizen abroad - I can think of a number of examples of such assaults - it is appropriate that such a trial can take place within this jurisdiction.

Michael McDowell (Independent)
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I do not see why it is appropriate that an Irish citizen should be triable in Ireland on the charge that he threw a punch in Australia.I do not see why that should be the case, and the Istanbul Convention to implement that in Irish law does not require that to be the case. I fully accept the point the Minister made on Second Stage, because I took the trouble to read his speech, that it cannot be women only, particularly in this day and age, and that we have to consider domestic violence involving males as well, male to male and female to female. I do think, however, that point is very widely cast and the Minister should think hard about proceeding with this in its present state and at least indicate that he would on Report Stage entertain an amendment to narrow the scope of that definition.

David Norris (Independent)
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Are we taking all Stages now?

Kieran O'Donnell (Fine Gael)
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Yes.

David Norris (Independent)
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That does not leave much time for the Senator’s amendment.

Kieran O'Donnell (Fine Gael)
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We are taking all Stages now, Committee and Report Stages, as set down on the Order of Business.

Martin Conway (Fine Gael)
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It was agreed on the Order of Business and it was not voted on. It was agreed.

Kieran O'Donnell (Fine Gael)
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Is the section agreed to?

Michael McDowell (Independent)
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I am against section 1 standing part of the Bill but I will not call a vote on it.

Michael McDowell (Independent)
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There are two aspects of the drafting of the Bill that I ask the Minister to consider. The phrase used in section 3(1) and (4), "the person shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the relevant offence concerned" is infelicitous drafting. I think it should be "accused of the offence" rather than "guilty" of the offence.

Charles Flanagan (Laois, Fine Gael)
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I have referred to the fact that because of the lower order of a section 2 offence under the 1976 regime, it is not considered appropriate that this Act would apply.

Michael McDowell (Independent)
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I am still not happy with that. The second point arises in sections 3(5) and 3(6). Section 3(5) refers to, "Where a person, other than an Irish citizen, who is ordinarily resident in the State engages in conduct in a place outside the State that would, if the conduct occurred in the State, constitute murder or manslaughter", but surely that should be murder or attempted murder or manslaughter. Surely the same should apply to 3(6).

Charles Flanagan (Laois, Fine Gael)
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I would be happy to reflect on that. It was not in the original text. The issue has not been raised to date but I would be happy to give it further consideration.

Michael McDowell (Independent)
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I am not raising it as a major issue. I notice further on in that section that jurisdiction is conferred in respect of persons "ordinarily resident in the State". Section (10) reads: "For the purposes of this section, a person shall be deemed to be ordinarily resident in the State if he or she had his or her principal residence in the State for the period of 12 months immediately preceding the alleged commission of the offence." How will that be proved? What is the principal residence? How will it be proved that somebody had a principal residence in Ireland? If we are dealing with a non-Irish citizen, which this section deals with, how can we establish proof that the person is ordinarily resident in the State by reference to that? It seems to me that there should be a presumption if a person is charged as a person "ordinarily resident in the State" that he or she is such a person rather than that the Garda would have to work out his or her principal residence, whether it was in the State, whether the person had a house in Crossmaglen or Torremolinos, an apartment in Dublin, or whatever. If the Minister is going to make this workable, there should be a presumption that the person charged as a person resident in the State was so resident until the person shows otherwise. I cannot imagine how the Garda could in effect prove that a person had a principal residence for 12 months prior to an event. It would be very difficult to do that.

Charles Flanagan (Laois, Fine Gael)
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I am satisfied, having regard to the seriousness of the offence, that there would be certain proofs required, one of them being whether the person was living in the State, had been living in the State or had established either residence or domicile in the State. I do not believe that the content of the subsection is unduly onerous. In view of what Senator McDowell has said, however, if it is an issue that there have been areas of confusion in the procuring of evidence or otherwise, which I do not believe to be the case, I will certainly consider it further.

Kieran O'Donnell (Fine Gael)
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When is it proposed to take the next Stage?

Martin Conway (Fine Gael)
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Now.

Kieran O'Donnell (Fine Gael)
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Is that agreed?

David Norris (Independent)
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The Minister said he was going to give some consideration to matters raised by Senator McDowell. If we are going on to Report Stage now, I do not see how he can.

Charles Flanagan (Laois, Fine Gael)
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That can be dealt with in the Dáil.

Martin Conway (Fine Gael)
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It will be in the Dáil.

David Norris (Independent)
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I understand. I appreciate the clarification.

Kieran O'Donnell (Fine Gael)
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The Minister has undertaken to deal with them in the Dáil. Is that agreed? Agreed.

Charles Flanagan (Laois, Fine Gael)
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I thank Senators for their support. I am now happy to proceed to the Lower House. A small number of issues have been raised. I will be happy to communicate directly with Senator McDowell if the House is of the view that this is deemed to be in order. The priority is early ratification. I thank Senators for their co-operation.

Martin Conway (Fine Gael)
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On behalf of Fine Gael Senators, I thank the House for its co-operation in dealing with this important legislation. I welcome the Minister's commitment to ratify urgently and deal in the Lower House with the concerns raised.

Michael McDowell (Independent)
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I thank the Minister and Senator Conway for their most gracious remarks.

Rose Conway Walsh (Sinn Fein)
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I thank the Minister for his work on the Bill and everyone who has made a contribution to it. It is of great importance and we have waited many years to have it passed. I also take on board the expertise of Senator McDowell. If it would be useful, I would certainly support the Senator talking to the Minister directly to see what slight amendments could be made in the Dáil, but it is important that we pass the Bill today.

Kieran O'Donnell (Fine Gael)
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They were constructive contributions. Would Senator Norris like to comment in the same spirit?

David Norris (Independent)
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No, only to say this a very important-----

Charles Flanagan (Laois, Fine Gael)
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In the spirit of the constructive contributions, I appeal to the Senator not to depart again.

David Norris (Independent)
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I beg your pardon. Do people expect me to depart from Platform 12 and a half for Hogwarts? This is important legislation. I spoke effectively to the domestic violence and violence against women legislation and gained certain concessions in having amendments taken on board. I am glad that the House did not hold up the Bill. It is appropriate that Senator McDowell asked the questions he did and I am grateful to the Minister for saying he will give them consideration before presenting the Bill to the Dáil.

Kieran O'Donnell (Fine Gael)
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By way of comment, I have no doubt that the bipartisan approach taken to the Bill we have just completed will continue with the Judicial Appointments Commission Bill, the debate on which I await with great interest.

Martin Conway (Fine Gael)
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I foresee a swift passage.