No. 18/1949:

FISHERIES (AMENDMENT) ACT, 1949

ARRANGEMENT OF SECTIONS

PART I PRELIMINARY AND GENERAL

1 Short title and collective citation.

2 Commencement.

3 Interpretation.

4 Repeal and amendment of certain enactments.

PART II ACCOUNTS OF BOARDS OF CONSERVATORS

5 Accounts of boards of conservators.

6 Duty of clerk of board of conservators in respect of certain proposals.

PART III RATES ON FISHERIES

7 Amendment of section 13 of the Fisheries Act, 1925.

PART IV FINES AND FORFEITURES

8 "The salmon fisheries enactments."

9 Disposal of fines under the Acts.

10 Payments by the Minister in respect of fines for offences under the salmon fisheries enactments.

11 Amendment of certain provisions of the Acts, etc, providing for forfeiture.

12 Non-obligation of Court to pronounce or record forfeiture where forfeiture falls as a statutory consequence of conviction.

13 Proceedings consequent upon seizure of unlawful fishing engines and lawful fishing engines unlawfully used.

14 Disposal of forfeitures.

15 Payments by the Minister in respect of proceeds of forfeitures under the salmon fisheries, enactments.

FIRST SCHEDULE

SECOND SCHEDULE

THIRD SCHEDULE

AN ACT TO RE-ENACT SECTION 15 of THE FISHERIES ACT, 1925 , AS AMENDED BY SUBSEQUENT ENACTMENTS, TO IMPOSE CERTAIN DUTIES ON CLERKS OF BOARDS OF CONSERVATORS, TO AMEND SECTION 13 OF THAT ACT AND TO AMEND THE PROVISIONS OF THE FISHERIES ACTS, 1842 TO 1944 RELATING TO FINES AND FORFEITURES.

[26th July, 1949.]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:—

PART I PRELIMINARY AND GENERAL

1.—(1) This Act may be cited as the Fisheries (Amendment) Act, 1949 .

(2) The Fisheries Acts, 1842 to 1944, the Fisheries (Oyster, Crab and Lobster) Act, 1877, and this Act may be cited together as the Fisheries Acts, 1842 to 1949.

2.—(1) Parts I and III of this Act shall come into operation immediately upon the passing of this Act.

(2) Part II of this Act shall come into operation on such day as shall be fixed for that purpose by order of the Minister.

(3) Part IV of this Act shall come into operation on such day as shall be fixed for that purpose by order of the Minister.

3.—(1) In this Act—

the expression "the Acts" means the Fisheries Acts, 1842 to 1944, and includes the Fisheries (Oyster, Crab and Lobster) Act, 1877;

the expression "District Justice" means a Justice of the District Court;

the word "instrument" means any order, regulation or bye-law;

the expression "the Minister" means the Minister for Agriculture.

(2) In this Act, references to any enactment shall be construed as references to that enactment as amended by this Act.

(3) This Act shall be construed as one with the Acts.

4.—(1) The enactments mentioned in column (2) of Part I of the First Schedule to this Act are hereby repealed to the extent mentioned in column (3) of the said Part I as on and from the commencement of Part II of this Act.

(2) The enactments mentioned in column (2) of Part II of the First Schedule to this Act are hereby repealed as on and from the passing of this Act.

(3) Each enactment mentioned in column (2) of Part III of the First Schedule to this Act shall have effect in accordance with the provisions set out in column (3) of the said Part III opposite the mention of that enactment as on and from the commencement of Part IV of this Act.

PART II ACCOUNTS OF BOARDS OF CONSERVATORS

5.—The provisions set out in the Second Schedule to this Act shall apply in relation to the accounts of boards of conservators and the audit and auditor thereof.

6.—Whenever a proposal is made at a meeting of a board of conservators to do any act, matter or thing in consequence of which an illegal payment is to be made out of the funds of such a board or a dificiency or loss is likely to result in or to such funds, it shall be the duty of the clerk of such board to make objection to the doing of such act, matter or thing and to state the grounds of such objection, which objection and the grounds thereof and, if a decision is taken on such proposal , the names of the members of such board present and voting for and against such decision and abstaining from voting on such decision, shall be recorded on the minutes of such meeting.

PART III RATES ON FISHERIES

7.— Section 13 (which relates to rates on fisheries) of the Fisheries Act, 1925 (No. 32 of 1925), as amended by section 1 of the Fisheries Act, 1937 (No. 35 of 1937), is hereby amended as follows—

( a ) in subsection (6), the word "thirty-eight" shall be substituted for the word "twenty-three",

( b ) in subsection (7) the word "thirty-nine" shall be substituted for the word "twenty-four",

( c ) in subsection (9) the word "thirty-eight" shall be substituted for the word "twenty-three".

PART IV FINES AND FORFEITURES

8.—In this Part, the expression "the salmon fisheries enactments" means the enactments mentioned in the Third Schedule to this Act or any instrument made thereunder relating to fishing for salmon, trout or eels.

Fines.

9.—(1) This section applies to every fine imposed after the commencement of this Part for any offence under the Acts or any instrument made thereunder.

(2) Section 51 of the Court Officers Act, 1926 (No. 27 of 1926), shall cease to apply to any fine to which this section applies.

(3) Every fine to which this section applies shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance shall direct.

(4) Where a fine to which this section applies is remitted in whole or in part after it has been paid into or disposed of for the benefit of the Exchequer under subsection (3) of this section, such fine or the portion thereof so remitted (as the case may be) shall be repaid out of the Exchequer in such manner as the Minister for Finance shall direct.

10.—(1) Where a fine, imposed after the commencement of this Part, for an offence under the salmon fisheries enactments has been paid or levied, then, unless the fine has been wholly remitted, the following provisions shall apply—

( a ) in case it appears to the Minister that a member of the Garda Síochána was the means of bringing to justice the person by whom the offence was committed, there shall be paid—

(i) to the board of conservators of the fishery district in which the offence was committed a sum equal to two-thirds of the fine or, if the fine was remitted in part, of so much thereof as was not remitted, and

(ii) into the Garda Síochána Reward Fund a sum equal to one-third of the fine or, if the fine was remitted in part, of so much thereof as was not remitted,

( b ) in any other case, there shall be paid to the said board of conservators a sum equal to the fine or, if the fine was remitted in part, so much thereof as was not remitted.

(2) All moneys payable under subsection (1) of this section shall be paid out of moneys provided by the Oireachtas by the Minister at such times as he thinks fit.

Forfeitures.

11.—Where any section (being a section creating an offence) of the Acts or any instrument (being an instrument creating an offence) made under the Acts provides, as part of the punishment for the offence and as a consequence of conviction thereof, that the person convicted of that offence shall forfeit a particular thing or that a particular thing shall be forfeited, the said section or instrument shall be construed as if, in lieu of that provision, it provided that, where a person is convicted of that offence, the thing, specified in the said section or instrument as the thing to be forfeited, shall, as a statutory consequence of conviction, stand forfeited.

12.—Where—

( a ) a person is convicted by a District Justice of an offence under any section of the Acts or any instrument made thereunder, and

( b ) the said section or instrument (as amended by this Act) provides that a particular thing shall, as a statutory consequence of conviction, stand forfeited,

then, notwithstanding any rule of law, it shall not be necessary for the said Justice to—

(i) pronounce the fact of such forfeiture at the time of adjudication, or

(ii) record the fact of such forfeiture in the Justice's Minute Book or the Charge Sheet or in the order of conviction.

13.—Where any person, in exercise of the powers conferred on him by the Acts, seizes any fishing engine, he shall, as soon as may be, bring it before the District Justice in whose district it was seized, and thereupon the following provisions shall have effect—

( a ) if the District Justice finds that the fishing engine is an unlawful fishing engine, he shall order it to be forfeited and destroyed,

( b ) if the District Justice finds that the fishing engine is a lawful fishing engine but at the time of its seizure had been, was being, or was about to be, unlawfully used, he shall order it to be forfeited,

( c ) if the District Justice finds that the fishing engine is a lawful fishing engine but at the time of its seizure had not been, was not being, or was not about to be, unlawfully used, he shall order it to be returned to the person who appears to him to be the owner thereof.

14.—(1) Where—

( a ) any thing, which, either as a statutory consequence of conviction or by order of a District Justice, is forfeited under the Acts or the Acts as amended by this Act or any instrument made thereunder, is lawfully seized, or

( b ) any thing is ordered by a District Justice under paragraph (b) of section 13 of this Act to be forfeited,

the Minister may direct that such thing shall—

(i) be returned to the person who appears to him to be the owner thereof, or

(ii) be sold or otherwise disposed of in such manner as he thinks fit.

(2) Where the Minister, in pursuance of subsection (1) of this section, directs a thing to be sold, the net proceeds of the sale shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance shall direct.

(3) Subsection (1) of this section shall not apply to any thing forfeited under section 13 of the Oyster Cultivation (Ireland) Act, 1884, where the Court gives a direction under the said section 13 in relation to such thing.

15.—Where—

( a ) any thing is forfeited under the salmon fisheries enactments, and

( b ) such thing is sold by direction of the Minister under section 14 of this Act,

the following provisions shall apply—

(i) in case it appears to him that a member of the Garda Síochána seized such thing or was the means of bringing to justice the person committing the offence which resulted in such forfeiture, the Minister shall, at such times as he thinks fit, pay out of moneys provided by the Oireachtas to the board of conservators for the fishery district in which the offence was committed a sum equal to two-thirds of the net proceeds of such sale and to the Garda Síochána Reward Fund a sum equal to one-third of the said net proceeds,

(ii) in any other case, the Minister shall, at such times as the thinks fit, pay out of moneys provided by the Oireachtas to such board of conservators a sum equal to the said net proceeds.

Section 4 (1).

FIRST SCHEDULE

ENACTMENTS REPEALED AND AMENDED.

PART I.

ENACTMENTS REPEALED IN PART AS FROM THE COMMENCEMENT OF PART II OF THIS ACT.

Section 4 (2).

PART II.

ENACTMENTS WHOLLY REPEALED AS FROM THE PASSING OF THIS ACT.

Section 4 (3).

PART III.

ENACTMENTS REPEALED IN PART OR AMENDED AS FROM THE COMMENCEMENT OF PART IV OF THIS ACT.

Section 5

SECOND SCHEDULE

AUDIT OF ACCOUNTS OF BOARDS OF CONSERVATORS.

Definitions

1. In this Schedule—

the word "accounts" means accounts of receipts and payments;

the word "audit" means an audit of the accounts of a board held in pursuance of paragraph 3 of this Schedule; the word "auditor" means, in relation to the audit of the accounts of a board, the local government auditor nominated by the Minister for Local Government under paragraph 3 of this Schedule to hold such audit;

the word "board" means a board of conservators;

the expression "local government auditor" means a local government auditor within the meaning of Section 68 of the Local Government Act, 1941 (No. 23 of 1941).

Accounts to be made up yearly.

2. The accounts of every board shall be made up yearly to the end of each fishery year.

Yearly audit of accounts by auditor.

3. The accounts of a board for each fishery year shall be audited by a local government auditor nominated for the purpose by the Minister for Local Government.

Audit fees.

4. (1) At any time after the completion of an audit, the Minister for Local Government may by order fix the fee (in this paragraph referred to as an audit fee) to be paid in respect of such audit.

(2) A board in respect of which an audit fee is fixed under this paragraph shall pay to the Minister for Local Government the amount of such fee.

(3) The amount of any audit fee may, in default of payment, be deducted in whole or in part from any moneys payable by any Minister of State for any purpose whatsoever to the board by whom such audit fee is payable.

(4) All moneys payable to the Minister for Local Government in discharge of audit fees shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.

(5) Every audit fee shall be deemed to cover every (if any) extraordinary audit of the accounts to which such fee relates which is held under paragraph 13 of this Schedule.

(6) The Minister for Local Government may by order revoke any order made under this paragraph.

Duties of auditor.

5. It shall be the duty of the auditor at every audit of the accounts of a board held by him—

( a ) to examine such accounts,

( b ) to disallow every item of account which is contrary to law or which he deems to be unfounded,

( c ) to surcharge the amount of any payment disallowed upon the person making or authorising the making of the payment,

( d ) to charge the amount of any deficiency or loss upon any person (being a member, officer or servant of the board) by whose negligence or misconduct the loss or deficiency has been incurred,

( e ) to charge any sum which has not been duly brought into account upon the person (being an officer or servant of the board) by whom that sum ought to have been brought into account,

( f ) to certify the amount due by any person upon whom he has made a surcharge or a charge,

( g ) to certify at the conclusion of the audit his allowance of the accounts, subject to any disallowances, surcharges or charges which he may have made.

Statement by auditor of reason for decision in respect of disallowance, surcharge, charge or allowance.

6. (1) The auditor holding an audit of the accounts of a board shall, upon the application by any party aggrieved, state in writing at the foot of such accounts the reasons for his decision in respect of any disallowance, surcharge or charge made by him and also of any allowance which he may have made.

(2) An application under subparagraph (1) of this paragraph shall be made, in the case of an allowance, not later than fourteen days after the allowance has been made and, in the case of a disallowance, surcharge or charge, not later than fourteen days after any sum has been certified to be due from any person in respect of the disallowance, surcharge or charge.

Appeals against decision of auditor to the High Court or to the Minister.

7. (1) Any person, who is aggrieved by any allowance, disallowance, surcharge or charge made by an auditor at any audit of the accounts of a board and who has not availed himself of subparagraph (2) of this paragraph, may apply to the High Court for an order of certiorari to remove the said allowance, disallowance, surcharge or charge into the High Court, and on such removal the following provisions shall apply—

( a ) the High Court shall decide the particular matter of complaint,

( b ) if the decision of the auditor is confirmed, then, unless the High Court orders the auditor's costs of the proceedings to be paid by the prosecutor, the High Court shall order those costs to be paid by such board,

( c ) if it appears to the High Court that the decision of the auditor was erroneous—

(i) the Court may make such order as justice may require including an order for such payments as it thinks proper,

(ii) the Court shall, unless it orders the prosecutor to abide his own costs of the proceedings, order such board to pay those costs and also, unless it directs the auditor to abide his own costs of the proceedings, those costs.

(2) Any person, who is aggrieved by any disallowance, surcharge, charge or allowance made by an auditor at any audit and who has not availed himself of subparagraph (1) of this paragraph, may apply to the Minister to inquire into and decide upon the lawfulness of the reasons stated by the auditor for such disallowance, surcharge, charge or allowance, and thereupon the Minister may make such order as he deems requisite for determining the question and in deciding the application may do so according to the merits of the case, and, if he finds that any disallowance, surcharge or charge was lawfully made, but that the subject matter thereof was incurred under such circumstances as to make it fair and equitable that the disallowance, surcharge or charge should be remitted, he may direct that it shall be remitted upon payment of the costs (if any) which may have been incurred by the auditor or other competent authority in enforcing the disallowance, surcharge or charge and the decision of the Minister shall be final.

(3) Every application under subparagraph (1) or (2) of this paragraph consequent upon the decision of the auditor on an audit shall be made within six weeks commencing on the day on which the applicant has received the auditor's reasons for such decision.

Application to Minister to remit surcharge or charge confirmed by the High Court.

8. If on the application to the High Court under subparagraph (1) of paragraph 7 of this Schedule by a person aggrieved by a surcharge or charge, the Court confirms the surcharge or charge, such person may, within four weeks commencing on the day of such confirmation, apply to the Minister to remit the surcharge or charge, and if, on such application, the Minister is of opinion that the circumstances of the case make it fair and equitable that the surcharge or charge should be remitted, he may direct that it be remitted upon payment of the costs incurred by the auditor or other competent authority in resisting the application to the High Court and otherwise enforcing the surcharge or charge.

Recovery of surcharges, etc.

9. (1) Where—

( a ) on the audit of the accounts of a board any sum is certified by the auditor to be due from any person, and

( b ) no application consequent upon the decision of the auditor is duly made under subparagraph (1) or (2) of paragraph 7 of this Schedule,

such person shall pay such sum to such board upon the expiration of six weeks from the date of the certificate of the auditor certifying such sum to be due from such person or, if the auditor has, in pursuance of paragraph 6 of this Schedule, stated the reasons for his decision, the date of the receipt by such person of the said reasons.

(2) Where—

( a ) on the audit of the accounts of a board any sum is certified to be due from any person, and

( b ) an application consequent upon the decision of the auditor is duly made under subparagraph (1) or (2) of paragraph 7 of this Schedule, and

( c ) it is decided that such sum or any part thereof is due from such person,

such person shall pay such sum or such part thereof (as the case may be) to such board before the expiration of six weeks from such decision.

(3) Any sum required by this paragraph to be paid to a board may, in default of being so paid upon the expiration of the period specified in that behalf by this paragraph, be recovered by the auditor concerned or by any other person appointed by the Minister for Local Government for that purpose as a simple contract debt.

(4) Where an auditor or other person has recovered, consequent upon proceedings taken under this paragraph, any sum required by this paragraph to be paid to a board, he shall pay such sum to such board.

(5) Where an auditor or other person incurs reasonable costs and expenses in connection with the recovery of a sum required by this paragraph to be paid to a board and obtains none or some only of such costs and expenses from the person by whom such sum is due, such board shall pay such costs and expenses or the balance thereof not obtained as aforesaid (as the case may be) to such auditor or other person, together with a sum representing reasonable compensation for his loss of time.

Jurisdiction of the District Court in proceedings under paragraph 9 of this Schedule.

10. Paragraph A of section 77 of the Courts of Justice Act, 1924 (No. 10 of 1924), as amended by section 52 of the Courts of Justice Act, 1936 (No. 48 of 1936), and section 94 of the Local Government Act, 1946 (No. 24 of 1946), is hereby further amended by the insertion at the end of the said paragraph of a new clause as follows—

"(vii) jurisdiction, without any limit as to the amount of the claim, in proceedings at the suit of an auditor or other person under subparagraph (3) of paragraph 9 of the Second Schedule to the Fisheries (Amendment) Act, 1949 ."

Powers of auditors to obtain evidence, etc.

11. (1) An auditor holding an audit may take evidence on oath and for that purpose may administer oaths.

(2) Subject to the provisions of subparagraph (3) of this paragraph, the auditor holding an audit, may, by giving notice in that behalf in writing to any person, require that person to attend at such time and place as is specified in such notice to give evidence in relation to any matter in question at such audit or to produce any documents in his possession, custody or control which relate to any such matter.

(3) The following provisions shall apply and have effect for the purposes of subparagraph (2) of this paragraph—

( a ) it shall not be necessary for any person to attend in compliance with a notice given under the said subparagraph (2) by an auditor at a place more than ten miles from such person's ordinary place of residence unless such sum as will cover the reasonable and necessary expenses of such attendance has been paid or tendered to such person;

( b ) a board whose accounts are being audited shall, at the request of the auditor, pay or tender to any person whose attendance the auditor requires under the said subparagraph (2) such sum as the auditor considers will cover the reasonable and necessary expenses of such attendance;

( c ) any person who in compliance with a notice under the said subparagraph (2) has attended at any place shall, save in so far as the reasonable and necessary expenses of such attendance have already been paid to him, be paid such expenses by the board whose accounts are being audited, and such expenses, save as aforesaid, shall, in default of being so paid, be recoverable as a simple contract debt in any court of competent jurisdiction;

( d ) every person to whom a notice has been given under the said subparagraph (2) who refuses or wilfully neglects to attend in accordance with such notice or who wilfully alters, suppresses, conceals or destroys any document to which such notice relates or who, having so attended, refuses to give evidence or refuses or wilfully fails to produce any document to which such notice relates shall be guilty of an offence under this paragraph and shall be liable on summary conviction thereof to a fine not exceeding twenty pounds;

( e ) a notice under the said subparagraph (2) may be given either by delivering it to the person to whom it relates or by sending it by post in a prepaid registered letter addressed to such person at the address at which he ordinarily resides.

Regulations as to audit.

12. (1) The Minister may make regulations in relation to all or any of the following matters—

( a ) the form in which accounts of boards are to be kept,

( b ) the person by whom and the time within which such accounts are to be produced for audit,

( c ) the mode of conducting the audit, and

( d ) any other matter or thing relating to the audit of such accounts which the Minister considers necessary to provide for.

(2) Any regulations made under subsection (3) of section 15 of the Act of 1925 and in force immediately before the commencement of this Schedule shall continue in force and have effect as if made under this paragraph.

Extraordinary audit.

13. (1) The Minister, after consultation with the Minister for Local Government, may at any time direct an extraordinary audit of the accounts of a board to be held.

(2) An extraordinary audit held under this paragraph shall be deemed to be an audit for the purposes of the preceding provisions of this Schedule and the preceding provisions of this Schedule shall apply accordingly.

(3) An auditor of the Minister for Local Government may, at any time when authorised or required by the said Minster, inspect the accounts of any board, and if any member, officer or servant of such board refuses to allow such inspection or obstructs the auditor therein or conceals any account or book for the purpose of preventing the inspection, he shall be guilty of any offence under this paragraph and shall be liable onsummary conviction thereof to a fine not exceeding five pounds.

Section 8.

THIRD SCHEDULE

"THE SALMON FISHERIES ENACTMENTS".

1. The Fisheries (Ireland) Act, 1842 (except sections 5, 6, 7, 8, 9, 10, 13, 14, 32 and 36 (in so far as section 36 relates to oysters or oyster brood)).

2. The Fisheries (Ireland) Act, 1845 (except sections 19 and 20).

3. The Fisheries (Ireland) Act, 1848 (except section 42 (in so far as it relates to oysters)).

4. The Fisheries (Ireland) Act, 1850.

5. The Salmon Fishery (Ireland) Act, 1863.

6. The Fisheries (Ireland) Act, 1869.

7. The Pollen Fisheries (Ireland) Act, 1891.

8. The Fisheries Act, 1924 (No. 6 of 1924).

9. The Fisheries Act, 1925 (No. 32 of 1925).

10. The Fisheries (Tidal Waters) Act, 1934 (No. 24 of 1934).

11. Part II of the Fisheries Act, 1939 (No. 17 of 1939), except sections 17 and 50.

12. The Fisheries (Amendment) Act, 1944 (No. 6 of 1944).

13. Section 13 of this Act in so far as the section relates to a fishing engine used for the capture of salmon, trout or eels.