Fisheries (Amendment) Act , 1949

PART I. Preliminary and General.

1 Short title and collective citation.

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 Commencement.

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 Interpretation.

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 Repeal and amendment of certain enactments.

4.—(1) The enactments mentioned in column (2) of Part I of the First Schedule to this Act are hereby repealed to the extent mentioned in column (3) of the said Part I as on and from the commencement of Part II of this Act.

(2) The enactments mentioned in column (2) of Part II of the First Schedule to this Act are hereby repealed as on and from the passing of this Act.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 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 Duty of clerk of board of conservators in respect of certain proposals.

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 board or a deficiency 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 Amendment of section 13 of the Fisheries Act, 1925.

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 “The salmon fisheries enactments.”

8.—In this Part, the expression “the salmon fisheries enactment” 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 Disposal of fines under the Acts.

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

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

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

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

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 Disposal of forfeitures.

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

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 he thinks fit, pay out of moneys provided by the Oireachtas to such board of conservators a sum equal to the said net proceeds.

FIRST SCHEDULE. Enactments repealed and amended.

PART I.

Number and Year	Short Title	Extent of Repeal
(1)	(2)	(3)
No. 32 of 1925	The Fisheries Act, 1925	Section 15.
No. 23 of 1941	The Local Government Act, 1941.	Sections 69, 70 and 71, in so far as those sections apply, by virtue of subsection (5) of section 68 of the Local Government Act, 1946 (No. 24 of 1946) to boards of conservators, under the Fisheries Acts, 1842 to 1944; section 86, in so far as that section applies, by virtue of section 68 of the Local Government Act, 1946, to the audit of the accounts of a board of conservators under the Fisheries Acts, 1842 to 1944.
No. 24 of 1946	The Local Government Act, 1946.	Subsection (5) of section 68; in subsection (7) of section 68, the reference to a board of conservators under the Fisheries Acts, 1842 to 1944.

PART II.

Section 4 (2).

Number and Year	Short Title
(1)	(2)
No. 34 of 1935.	The Fisheries Act, 1935.
No. 35 of 1937.	The Fisheries Act, 1937.

PART III.

Section 4 (3).

Session and Chapter or No. and Year	Short Title	How Affected.
(1)	(2)	(3)
5 & 6 Vic., c. 106.	The Fisheries (Ireland) Act, 1842.	Section 103 shall be repealed.
11 & 12 Vic., c. 92.	The Fisheries (Ireland) Act, 1848.	In section 22, the words “and sold or otherwise disposed of as the justice or justices shall deem fit” shall be repealed.
26 & 27 Vic., c. 114.	The Salmon Fishery (Ireland) Act, 1863.	In section 18, the words “the justice may order the boat, cot, or curragh so used to be forfeited” shall be substituted for the words “the boat, cot or curragh so used may be seized and forfeited.”
32 & 33 Vic., c. 92.	The Fisheries (Ireland) Act, 1869.	Section 19 shall be repealed.
No. 53 of 1933.	The Sea Fisheries Protection Act, 1933.	In subsection (4) of section 3, the words “and in either case the court may also forfeit any fish found on such boat and any fishing gear thereon” shall be deleted and the following words substituted “and (whether the offence is a first offence or not) the court shall, in case any person on board such boat had fished or attempted to fish while such boat was within such exclusive fishery limits, and may, in any other case, order any fish and fishing gear found on such boat to be forfeited.”
		In section 4, the following subsection shall be substituted for subsection (3)—
		“(3) Where a person is convicted of an offence under this section, any fishing gear by means of which the offence was committed shall, as a statutory consequence of conviction, stand forfeited.”
		Section 14 shall be repealed.
No. 24 of 1934.	The Fisheries (Tidal Waters) Act, 1934.	In subsection (3) of section 7, the words “and either (as the court may direct) destroyed or sold, and if sold the proceeds arising from such sale shall be disposed of in the like manner as fines imposed in respect of offences under this Act” shall be repealed.
No. 33 of 1937.	The Sea Fisheries (Protection of Immature Fish) Act, 1937.	In section 3, the following subsection shall be substituted for subsection (4)—
		“(4) Where a person is convicted of an offence under this section, any net by means of which the offence was committed shall, as a statutory consequence of conviction, stand forfeited.”
		In section 4, the following subsection shall be substituted for subsection (3)—
		“(3) Where a person is convicted of an offence under this section, any device by means of which the offence was committed shall, as a statutory consequence of conviction, stand forfeited.”
		Section 10 shall be repealed.

SECOND SCHEDULE. Audit of Accounts of Boards of Conservators.

Definitions.

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.

Yearly audit of accounts by auditor.

Audit fees.

(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.

(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.