CONTROL OF EXPORTS ACT 2023

Type Act

Publication 2023-10-25

State In force

Text As published

Source Irish Statute Book

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articles 74

This is the act as published. Later amendments are not folded into the text below: each one is a separate act in this repository and an entry in this law's history.

Act to provide for control of the export of items that can be used for civil or military purposes and for control of the provision of brokering services or technical assistance in respect of, or control of transit of, those items; to give full effect to Council Regulation (EU) No. 2021/821 of 20 May 2021 setting up a Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items (recast); to provide for control of the export of military items and for control of the provision of brokering services in respect of, or control of transit of, those items; to provide for the Minister to grant authorisations to undertake certain activities relating to dual-use items and military items; to provide for a process for appealing certain decisions of the Minister with due regard to the potentially sensitive nature of the subject matter of the appeal, and for those purposes to establish a panel of persons to deal with appeals; to provide for enforcement; to provide for information sharing; to provide for the repeal of the Control of Exports Act 2008; and to provide for related matters.

Reform history JSON API

An Act to provide for control of the export of items that can be used for civil or military purposes and for control of the provision of brokering services or technical assistance in respect of, or control of transit of, those items; to give full effect to Council Regulation (EU) No. 2021/821 of 20 May 2021¹ setting up a Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items (recast); to provide for control of the export of military items and for control of the provision of brokering services in respect of, or control of transit of, those items; to provide for the Minister to grant authorisations to undertake certain activities relating to dual-use items and military items; to provide for a process for appealing certain decisions of the Minister with due regard to the potentially sensitive nature of the subject matter of the appeal, and for those purposes to establish a panel of persons to deal with appeals; to provide for enforcement; to provide for information sharing; to provide for the repeal of the Control of Exports Act 2008; and to provide for related matters.

[25th October, 2023]

Be it enacted by the Oireachtas as follows:

PART 1 Preliminary and General

1. Short title and commencement

1. (1) This Act may be cited as the Control of Exports Act 2023.

(2) This Act shall come into operation on such day or days as the Minister may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

2. Interpretation

2. (1) In this Act—

“Act of 2008” means the Control of Exports Act 2008;

“adjudicator” has the meaning given to it by section 39; “appellant” has the meaning given to it by section 43;

“applicant” means a person who applies under Part 4 for an authorisation; “authorisation” means an authorisation to undertake a relevant activity;

“basic scientific research” has the same meaning as it has in the General Technology Note or the Nuclear Technology Note set out in Annex I;

“broker”—

(a) in so far as it relates to a dual-use item, has the meaning given to it by section 9, and

(b) in so far as it relates to a military item, has the meaning given to it by section 22; “brokering services”—

(a) in so far as it relates to a dual-use item, has the meaning given to it by section 9, and

(b) in so far as it relates to a military item, has the meaning given to it by section 22;

“company” means a company formed and registered under the Companies Act 2014 or an existing company within the meaning of that Act;

“compliance notice” means a compliance notice given under section 61;

“Council Common Position 2008/944/CFSP” means Council Common Position 2008/944/CFSP of 8 December 2008² defining common rules governing control of exports of military technology and equipment amended by Council Decision (CFSP) 2019/1560³;

“cyber-surveillance item” has the same meaning as it has in Article 2;

“Defence Forces” has the same meaning as it has in section 2 of the Defence Act 1954;

“dual-use item” has the same meaning as it has in Article 2;

“Dual-use Regulation” means Council Regulation (EU) No. 2021/821 of 20 May 2021⁴ setting up a Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items (recast) amended by Regulation (EU) 2016/2339 of the European Parliament and of the Council of 14 December 2016⁵, Regulation (EU) 2019/474 of the European Parliament and of the Council of 19 March 2019⁶, Regulation (EU) 2019/632 of the European Parliament and of the Council of 17 April 2019⁷, Regulation (EU) 2022/2399 of the European Parliament and of the Council of 23 November 2022⁸, Commission Delegated Regulation (EU) 2022/1 of 20 October 2021⁹ and Commission Delegated Regulation (EU) 2022/699 of 2 May 2022¹⁰;

“export”—

(a) in so far as it relates to a dual-use item, has the meaning given to it by section 9, and

(b) in so far as it relates to a military item, has the meaning given to it by section 22; “exporter”—

(a) in so far as it relates to a dual-use item, has the meaning given to it by section 9, and

(b) in so far as it relates to a military item, has the meaning given to it by section 22;

“General Data Protection Regulation” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016¹¹ on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);

“in the public domain” has the same meaning as it has in the General Technology Note or the Nuclear Technology Note set out in Annex I;

“International United Nations Force” has the same meaning as it has in the Defence (Amendment) Act 2006;

“military end-use” means—

(a) incorporation into a military item or an item on the national military list of another Member State,

(b) use of production, test or analytical equipment and components therefor, for the development, production or maintenance of a military item or an item on the national military list of another Member State, or

(c) use of any unfinished products in a plant for the production of a military item or an item on the national military list of another Member State;

“military item” has the meaning given to it by section 23(2); “Minister” means the Minister for Enterprise, Trade and Employment;

“multilateral non-proliferation regimes” means the Australia Group, Missile Technology Control Regime, Nuclear Suppliers Group, Wassenaar Arrangement, Zangger Committee and the Chemical Weapons Convention;

“national military export control list” means the list for the time being prescribed under section 23(1);

“national military list of another Member State” means a military list established by a Member State other than the State which has the same force and effect in that Member State as the national military export control list;

“Order of 2009” means the Control of Exports (Dual Use Items) Order 2009 (S.I. No. 443 of 2009);

“personal data” has the same meaning as it has in the General Data Protection Regulation;

“prescribed” means prescribed by regulations made by the Minister; “provider of technical assistance” has the same meaning as it has in Article 2;

“record” means any memorandum, book, plan, map, drawing, diagram, pictorial or graphic work or other document, any photograph, film or recording (whether of sound or images or both), any form (including machine-readable form) or thing in which information is held or stored manually, mechanically or electronically and anything that is a part, copy, transcript or reproduction in any form, of any of the foregoing or is a combination of two or more of any of the foregoing;

“Regulations of 2018” means the Control of Exports (Appeals) Regulations 2018 (S.I. No. 457 of 2018);

“Regulations of 2021” means the Control of Exports (Brokering Activities, Goods and Technology) Regulations 2021 (S.I. No. 207 of 2021);

“relevant activity”, in so far as an authorisation is required for the activity under the Dual-use Regulation or Part 2 or Part 3, means—

(a) the export of a relevant item,

(b) the provision of brokering services in respect of a relevant item,

(d) the transit of a relevant item, or

(e) the transfer of a dual-use item from the State to a Member State other than the State;

“relevant decision” means a decision under—

(a) paragraph (b) or (c) of subsection (4) or subsection (8) of section 29,

(b) subsection (5) or (7) of section 34, or

(a) a dual-use item or cyber-surveillance item in respect of which an authorisation is required under the Dual-use Regulation or Part 2, or

(b) a military item in respect of which an authorisation is required under Part 3;

“relevant material” means any decision, evidence, document, material or other matter that—

(a) is relevant to an appeal under section 43 or 50, any further appeal following such an appeal or an application under section 51,

(b) is not publicly available, and

(a) subsection (3), (4), (6) or (7) of section 10,

(b) subsection (2) or (4) of section 14, or

(a) an exporter, broker or person who transits a relevant item,

(b) a provider of technical assistance in respect of a dual-use item, or

“technical assistance” has the same meaning as it has in Article 2;

“technical data” includes blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals and instruction in writing or recorded on media or devices such as disk, tape or read only memories;

“technology” means specific information necessary for the development, production or operation, installation, maintenance, repair, overhaul or refurbishing of a dual-use or military item, which information takes the form of technical data or technical assistance;

“third country” means a country or territory other than the State or another Member State;

“transit”—

(a) in so far as it relates to a dual-use item, has the meaning given to it by section 9, and

(b) in so far as it relates to a military item, has the meaning given to it by section 22;

“Union Customs Code” means Regulation (EU) No. 952/2013 of the European Parliament and of the Council of 9 October 2013¹² laying down the Union Customs Code (recast).

(2) In this Act—

(a) a reference to a numbered Article is a reference to the Article so numbered of the Dual-use Regulation, and

(b) a reference to a numbered Annex is a reference to the Annex so numbered of the Dual-use Regulation.

(3) A word or expression that is used in this Act and is also used in the Union Customs Code, the Dual-use Regulation or Council Common Position 2008/944/CFSP, has, unless the context otherwise requires, the same meaning in this Act as it has in the Union Customs Code, the Dual-use Regulation or Council Common Position 2008/944/CFSP.

3. Competent authority

3. The Minister shall be the competent authority in the State for the purposes of the Dual-use Regulation.

4. Reporting on operation of Act

4. (1) The Minister shall—

(a) cause a report to be prepared on the operation of this Act not more than 15 months after this section comes into operation and not less than once every 12 months thereafter, and

(b) cause a copy of the report to be laid before each House of the Oireachtas as soon as practicable after it has been prepared.

(2) A report prepared under this section shall, subject to subsection (3), include—

(a) aggregated details on the number of applications for and grants of authorisations,

(b) aggregated details on the number of relevant notices given,

(d) aggregated details on enforcement, including the number of compliance notices given,

(e) information on sectoral trends in policy relating to dual-use or military items, and

(f) any other matters relating to the operation of this Act that the Minister considers to be relevant.

(3) A report under this section shall not include—

(a) commercially sensitive information,

(b) personal data, or

5. Regulations

5. (1) The Minister may, having consulted with such other Minister of the Government as he or she considers appropriate, by regulations provide for any matter referred to in this Act as prescribed or to be prescribed.

(2) Without prejudice to any provision of this Act, regulations under this section may—

(a) contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary for the purposes of the regulations, and

(b) apply either generally or to such class or classes of export, relevant item, or relevant activity as may be specified in the regulations.

(3) Every regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House sits after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

6. Expenses

6. The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure, National Development Plan Delivery and Reform, be paid out of monies provided by the Oireachtas.

7. Service of notices or documents

7. (1) A notice or other document that is required to be served on or given to a person under this Act shall be in writing addressed to the person concerned by name, and may be so served on or given to the person in one of the following ways:

(a) by delivering it to the person;

(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address;

(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address;

(d) by electronic means, in a case in which the person has given notice in writing to the person giving the notice concerned of his or her consent to the notice (or notices of a class to which the notice belongs) being given to him or her in that manner.

(2) For the purpose of this section, a company formed and registered under the Companies Act 2014 or an existing company within the meaning of that Act is deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business.

8. Repeals and revocations

8. (1) The Act of 2008 is repealed.

(2) Each of the following instruments is revoked:

(a) the Order of 2009;

(b) the Regulations of 2018;

PART 2 Control of Dual-Use Items

9. Interpretation for Part 2

9. In this Part—

“broker” has the same meaning as it has in Article 2; “brokering services” has the same meaning as it has in Article 2; “export” has the same meaning as it has in Article 2;

“exporter” has the same meaning as it has in Article 2; “transit” has the same meaning as it has in Article 2;

“use” in relation to use of a dual-use or cyber-surveillance item means the item may be used in its entirety or in part as a dual-use or cyber-surveillance item.

10. Obligations of exporter under Article 3, 4 or 5

10. (1) An exporter who contravenes Article 3.1 shall be guilty of an offence.

(2) An exporter who contravenes Article 4.1 shall be guilty of an offence.

(3)
(a) Where an exporter is aware that a dual-use item not specified in Annex I that he or she proposes to export is intended for use in a manner specified in paragraph (a), (b) or (c) of Article 4.1, he or she shall, at least 60 days before the export, as required by Article 4.2, give notice to the competent authority.

(b) An exporter who contravenes paragraph (a) shall be guilty of an offence.

(4)
(a) Where an exporter has grounds to suspect that a dual-use item not specified in Annex I that he or she proposes to export is or may be intended for use in a manner specified in paragraph (a), (b) or (c) of Article 4.1, he or she shall, at least 60 days before the export, give notice to the competent authority of his or her grounds to so suspect.

(b) An exporter who contravenes paragraph (a) shall be guilty of an offence.

(5) An exporter who contravenes Article 5.1 shall be guilty of an offence.

(6)
(a) Where an exporter is aware, following the carrying out of due diligence, that a cyber-surveillance item not specified in Annex I that he or she proposes to export is intended for use in a manner specified in Article 5.1, he or she shall, at least 60 days before the export, as required by Article 5.2, give notice to the competent authority.

(b) An exporter who contravenes paragraph (a) shall be guilty of an offence.

(7)
(a) Where an exporter has grounds to suspect that a cyber-surveillance item not specified in Annex I that he or she proposes to export is or may be intended for use in a manner specified in Article 5.1, he or she shall, at least 60 days before he or she exports the cyber-surveillance item, give notice to the competent authority of his or her grounds to so suspect.

(b) An exporter who contravenes paragraph (a) shall be guilty of an offence.

11. Provision supplemental to section 10

11. (1) After receipt of a notice referred to in subsection (3), (4), (6) or (7) of section 10, the competent authority shall consider the matter and give notice to the exporter of the decision of the authority—

(a) that an authorisation is not required for the export of the dual-use or cyber-surveillance item the subject of the notice, or

(b) directing the exporter to apply for an authorisation to export the dual-use or cyber-surveillance item.

(2) An exporter who receives a direction under subsection (1)(b) in relation to a dual-use or cyber-surveillance item shall not export the item to which the direction relates without an authorisation to do so.

(3) An exporter who contravenes subsection (2) shall be guilty of an offence.

12. Order of Minister prohibiting export of dual-use item not specified in Annex I

12. (1) The Minister may—

(a) where he or she is satisfied that it is required for reasons of public security including the prevention of acts of terrorism or for human rights considerations, and

(b) having consulted with such other Minister of the Government as he or she considers appropriate,

by order prohibit the export without an authorisation of the dual-use item not specified in Annex I as is specified in the order.

(2) An exporter who exports a dual-use item specified in an order under subsection (1) without an authorisation shall be guilty of an offence.

13. Direction that authorisation required to export dual-use item not specified in Annex I

13. (1) Notwithstanding that a dual-use item not specified in Annex I has not been specified in an order under section 12, where the competent authority is satisfied that an authorisation to export the item is required for reasons of public security including the prevention of acts of terrorism or for human rights considerations, the competent authority may give notice to an exporter directing him or her to apply for an authorisation to export the dual-use item.

(2) An exporter who exports a dual-use item in contravention of a direction under subsection (1) shall be guilty of an offence.

14. Obligations of broker under Article 6

14. (1) A broker who contravenes Article 6.1 shall be guilty of an offence.

(2)
(a) Where a broker is aware that a dual-use item specified in Annex I in relation to which he or she proposes to provide brokering services is intended for use in a manner specified in paragraph (a), (b) or (c) of Article 4.1, he or she shall, at least 60 days before the provision of the brokering services, give notice to the competent authority.

(b) A broker who contravenes paragraph (a) shall be guilty of an offence.

(3) A broker who, having been informed by the competent authority that a dual-use item not specified in Annex I is or may be intended for use in a manner specified in paragraph (a), (b) or (c) of Article 4.1, provides brokering services in relation to the dual-use item shall be guilty of an offence.

(4)
(a) Where a broker has grounds to suspect that a dual-use item, whether or not specified in Annex I, in relation to which he or she proposes to provide brokering services is or may be intended for use in a manner specified in paragraph (a), (b) or (c) of Article 4.1, he or she shall, at least 60 days before he or she provides brokering services, give notice to the competent authority of his or her grounds to so suspect.

(b) A broker who contravenes paragraph (a) shall be guilty of an offence.

15. Provision supplemental to section 14

15. (1) After receipt of a notice referred to in subsection (2) or (4) of section 14, the competent authority shall consider the matter and give notice to the broker of the decision of the authority—

(a) that an authorisation is not required for the provision of brokering services in relation to the dual-use item the subject of the notice, or

(b) directing the broker to apply for an authorisation for the provision of brokering services in relation to the dual-use item.

(2) A broker who receives a direction under subsection (1)(b) in relation to a dual-use item shall not provide brokering services in relation to the dual-use item without an authorisation.

(3) A broker who contravenes subsection (2) shall be guilty of an offence.

16. Obligations of provider of technical assistance under Article 8

16. (1) Subject to subsection (5), a provider of technical assistance who contravenes Article 8.1 shall be guilty of an offence.

(2)
(a) Subject to subsection (5), where a provider of technical assistance is aware that a dual-use item specified in Annex I in relation to which he or she proposes to provide technical assistance is intended for use in a manner specified in paragraph (a), (b) or (c) of Article 4.1, he or she shall, at least 60 days before the provision of the technical assistance, give notice to the competent authority.

(b) A provider of technical assistance who contravenes paragraph (a) shall be guilty of an offence.

(3) Subject to subsection (5), a provider of technical assistance who, having been informed by the competent authority that a dual-use item not specified in Annex I is or may be intended for use in a manner specified in paragraph (a), (b) or (c) of Article 4.1, provides technical assistance in relation to the dual-use item, shall be guilty of an offence.

(4)
(a) Subject to subsection (5), where a provider of technical assistance has grounds to suspect that a dual-use item, whether or not specified in Annex I, in relation to which he or she proposes to provide technical assistance is or may be intended for use in a manner specified in paragraph (a), (b) or (c) of Article 4.1, he or she shall, at least 60 days before he or she provides the technical assistance, give notice to the competent authority of his or her grounds to so suspect.

(b) A provider of technical assistance who contravenes paragraph (a) shall be guilty of an offence.

(5) This section shall not apply to the provision of technical assistance in relation to a dual-use item where the technical assistance—

(a) is provided within or into the territory of a destination specified in Part 2 of Section A of Annex II,

(b) takes the form of transferring information that is in the public domain or consists of basic scientific research,

(d) is provided for a basis or purpose which is cited in the exemptions from items of the Missile Technology Control Regime in Part I of Annex IV, or

(e) is the minimum necessary for the installation, operation, maintenance (including checking) or repair of a dual-use item for which an authorisation has been granted and is in force.

17. Provision supplemental to section 16

17. (1) After receipt of a notice referred to in subsection (2) or (4) of section 16, the competent authority shall consider the matter and give notice to the provider of technical assistance of the decision of the authority—

(a) that an authorisation is not required for the provision of technical assistance in relation to the dual-use item the subject of the notice, or

(b) directing the provider of technical assistance to apply for an authorisation for the provision of technical assistance in relation to the dual-use item.

(2) A provider of technical assistance who receives a direction under subsection (1)(b) in relation to a dual-use item shall not provide technical assistance in relation to the dual-use item without an authorisation.

(3) A provider of technical assistance who contravenes subsection (2) shall be guilty of an offence.

18. Order of Minister prohibiting transit of certain dual-use items

18. (1) The Minister may—

(a) where he or she is satisfied that it is required because a non-Union dual-use item specified in Annex I or a dual-use item not specified in Annex I will or may be used in a manner specified in paragraph (a), (b) or (c) of Article 4.1, and

(b) having consulted with such other Minister of the Government as he or she considers appropriate,

by order prohibit the transit through or from the State of the non-Union dual-use item or dual-use item as may be specified in the order.

(2) A person who transits a dual-use item specified in an order under subsection (1) through or from the State shall be guilty of an offence.

19. Direction that authorisation required for transit of dual-use items specified in Annex I

19. (1) Notwithstanding that a dual-use item specified in Annex I has not been specified in an order made under section 18(1), where the competent authority is satisfied an authorisation to transit the dual-use item specified in Annex I is required because the dual-use item will or may be used in a manner specified in paragraph (a), (b) or (c) of Article 4.1, the competent authority may, in accordance with Article 7.2, give notice to a person directing him or her to apply for an authorisation to transit the dual-use item.

(2) A person who transits a dual-use item through or from the State in contravention of a direction under subsection (1) shall be guilty of an offence.

20. Obligations under Article 11

20. (1) A person who contravenes Article 11.1 shall be guilty of an offence.

(2)
(a) A person may not, without an authorisation, transfer a dual-use item not specified in Annex IV from the State to another Member State where he or she knows or has been informed by the competent authority that the conditions referred to in paragraphs (a), (b) and (c) of Article 11.2 apply to the item.

(b) A person who transfers a dual-use item in contravention of paragraph (a) shall be guilty of an offence.

21. Provision relating to decision of competent authority following receipt of relevant notice

21. (1) Subject to subsection (3), the competent authority shall make a decision in relation to a relevant notice received by it and give notice referred to in section 11(1), 15(1) or 17(1) as soon as may be after receipt of the relevant notice.

(2) The competent authority may, having received a relevant notice, request such further information from the person who gave the relevant notice as the authority considers necessary to make its decision referred to in sections 11(1), 15(1) and 17(1).

(3) The competent authority shall not consider a relevant notice received by it where the person who gave the relevant notice fails to furnish any further information requested under subsection (2).

PART 3 Control of Military Items

22. Interpretation for Part 3

22. In this Part—

“broker” means a person who provides brokering services, within the meaning of this Part, from the customs territory of the European Union into the territory of a third country;

“brokering services” means—

(a) negotiating or arranging transactions that may involve the transfer of a military item from a third country to another third country, or

(b) buying or selling or arranging the transfer of a military item, owned by the provider of the brokering service, from a third country to another third country;

“Common Military List of the European Union” means the list referred to in Article 346(2) of the Treaty on the Functioning of the European Union which was drawn up on 15 April 1958 and has been updated periodically by the Council;

“export” means any of the following:

(a) an export procedure within the meaning of Article 269 of the Union Customs Code;

(b) a re-export within the meaning of Article 270 of the Union Customs Code but not including items in transit through the customs territory of the European Union;

(c) transmission of software or technology by electronic media including by fax, telephone, electronic mail or any other electronic means to a destination outside the European Union, including making available in an electronic form such software and technology to legal and natural persons and partnerships outside the European Union;

(d) oral transmission of technology when the technology is described over the telephone;

“exporter” means—

(a) an individual carrying items to be taken out of the customs territory of the European Union where these items are contained in the private individual’s personal baggage, or

(b) in all other cases—

(i) a person established in the customs territory of the European Union who has the power to determine and has determined that the items are to be taken out of that customs territory, or

(ii) any person established in the customs territory of the European Union who is a party to a contract under which items are to be taken out of that customs territory;

“transit” means—

(a) the operation of transport of goods leaving the customs territory of the European Union and passing through the territory of one or more third countries with a final destination in another third country, or

(b) the operation of transport of goods leaving the customs territory of the European Union and intended for re-importation into that customs territory within a period not exceeding 24 months.

23. National military export control list

23. (1) The Minister, having consulted with such other Minister of the Government as he or she considers appropriate, may prescribe a list of items, other than dual-use items, which shall be known as the national military export control list.

(2) An item for the time being prescribed under subsection (1) to be on the national military export control list shall be a “military item”.

(3) The Minister may prescribe an item to be a military item where—

(a) the item is included on the Common Military List of the European Union,

(b) the item has been specially designed, developed or modified significantly for military purposes,

(c) it is necessary for, and proportionate to, the protection of the essential interests of the State’s security, which are connected with the production of or trade in items listed in the Common Military List of the European Union, and

(d) it does not or will not adversely affect the conditions of competition in the internal market regarding products which are not intended for specifically military purposes.

(4) Before prescribing an item to be on the national military export control list the Minister shall have regard to—

(a) the State’s commitment to multilateral non-proliferation regimes,

(b) the State’s obligations under Council Common Position 2008/944/CFSP, and

24. Control on export of military item

24. (1) Subject to section 27, an exporter shall not export a military item unless he or she has been granted an authorisation for that export.

(2) An exporter who contravenes subsection (1) shall be guilty of an offence.

25. Control on provision of brokering services in respect of military item

25. (1) Subject to subsections (2) and (3), a broker shall not provide brokering services in respect of a military item, where that item is being exported—

(a) from one third country to another third country,

(b) from the State to a third country, or

unless he or she has been granted an authorisation for the provision of the brokering services.

(2) Subsection (1) shall apply to a broker—

(a) in the State, who provides part only of the brokering services required in respect of a military item, or

(b) who provides brokering services in respect of a military item outside the State and is—

(i) an Irish citizen, or

(ii) a company or another body corporate or unincorporated body of persons constituted and otherwise subject to the laws of the State.

(3) Subsection (1) shall not apply to a broker who provides brokering services in respect of a military item outside the State, pursuant to an authorisation or other licence or consent for the provision of the brokering services with like effect to an authorisation, granted to the person according to the laws of a Member State other than the State.

(4) A broker who contravenes subsection (1) shall be guilty of an offence.

26. Control on transit of military item

26. (1) A person shall not transit a military item through or from the State unless he or she has been granted an authorisation for the transit.

(2) A person who contravenes subsection (1) shall be guilty of an offence.

27. Exemption for Defence Forces or Garda Síochána

27. The export of a military item shall not be an offence under section 24 where the export is carried out on a temporary basis—

(a) by the Defence Forces for any purpose connected with the despatch for service outside the State, under the provisions of the Defence Acts 1954 to 2015, of a contingent or member of the Defence Forces or for the purpose of—

(i) such military item being repaired, overhauled, refitted, modified, tested or maintained, and returned to the State,

(ii) such military item being used at international competitions, or

(iii) the testing of munitions,

(b) by the Garda Síochána for any purpose connected with the despatch for service outside the State under the provisions of the Garda Síochána Act 2005 of a member of the Garda Síochána or for the purpose of—

(i) such military item being repaired, overhauled, refitted, modified, tested or maintained, and returned to the State,

(ii) such military item being used at international competitions, or

(iii) the testing of munitions.

PART 4 Authorisation

28. Application for authorisation

28. (1) A person who requires an authorisation under the Dual-use Regulation or this Act shall, in accordance with this section, apply to the Minister for the authorisation.

(2) An application for an authorisation shall—

(a) be in writing, in such form as may be prescribed,

(b) specify the relevant activity or class of relevant activity in respect of which the applicant is applying for an authorisation,

(c) include, as respects the relevant activity or class specified in accordance with paragraph (b), certification by the applicant as to the proposed use to which the item for which the authorisation is sought shall be put (in this section referred to as an “end-use certificate”), and

(d) contain such other information as may be prescribed concerning the applicant, agent, consignee, end-user, description and identification of the dual-use or military item, proposed end-use of the item, intended number of dual-use or military items proposed to be exported, and duration of the authorisation.

(3) The Minister may, having received an application for an authorisation, request such further information from the applicant as the Minister considers necessary to make a decision under section 29.

(4) The Minister shall not consider an application for an authorisation if the applicant fails to furnish further information requested under subsection (3).

29. Decision of Minister on application for authorisation

29. (1) In considering an application for an authorisation the Minister may consult with any other Minister of the Government or such other person as he or she considers appropriate.

(2) The Minister shall, in considering an application for an authorisation—

(a) for a dual-use item, take account of all relevant considerations including the matters set out in paragraphs (a) to (d) of Article 15, and

(b) for a military item, take account of the criteria set out in Article 2 of Council Common Position 2008/944/CFSP.

(3) For the purpose of making a decision on an application for an authorisation, the Minister, in addition to complying with subsection (2) shall consider—

(a) the information provided in the application,

(b) any further information furnished by the applicant pursuant to a request under section 28(3), and

(4) The Minister, having considered an application for an authorisation, shall decide—

(a) to grant an authorisation,

(b) to grant an authorisation subject to conditions, or

(5) The Minister shall give notice to an applicant informing him or her of the decision under subsection (4) as soon as practicable after it is made and shall, subject to subsection (8), provide reasons for the decision.

(6) The Minister shall refuse to grant an authorisation if—

(a) the granting of the authorisation would contravene the Dual-use Regulation, Part 2 or Part 3,

(b) the applicant has, in purported compliance with this Act, provided information to the Minister which the applicant knows to be false or misleading in a material particular, or in respect of which the applicant is reckless as to whether or not it is false or misleading in a material particular,

(c) the applicant has committed an offence under this Act or any other enactment relating to the control of exports such that in the opinion of the Minister, the applicant is not a fit and proper person to hold an authorisation,

(d) in the opinion of the Minister, the granting of the authorisation would affect, or be likely to affect, the security or public order of the State, or

(e) in the opinion of the Minister, the granting of the authorisation would be inconsistent with European Union and international export control obligations, national security policy or human rights considerations.

(7) The Minister shall make a decision on an application for an authorisation as soon as may be after receipt of the application.

(8) Where the Minister believes that providing reasons for a decision on an application would create a risk to the security or public order of the State, he or she—

(a) may decide not to provide the applicant with such reasons to the extent necessary in order to avoid or minimise such risk, and

(b) shall include in the notice under subsection (5) a statement to the effect that he or she is declining to give reasons for the decision under this subsection.

(9) The Minister shall grant an authorisation in such form, including electronic form, as he or she may determine.

30. Prohibition on transfer of authorisation

30. (1) A holder of an authorisation shall not transfer the authorisation to another person.

(2) A person who transfers an authorisation in contravention of subsection (1) shall be guilty of an offence.

(3) Any purported transfer of an authorisation in contravention of subsection (1) shall be void.

31. Requirement to keep records

31. (1) A holder of an authorisation who—

(a) exports a relevant item,

(b) provides brokering services in respect of a relevant item,

(d) transits a relevant item, or

(e) transfers a dual-use item from the State to another Member State,

under the authorisation shall make and keep a detailed record identifying each item exported, transmitted or transferred, or each brokering service or technical assistance provided, as the case may be, under the authorisation.

(2) Where subsection (1)(a) applies, the record referred to in subsection (1) shall include, in particular, commercial documents such as invoices, manifests and transport and other dispatch documents containing sufficient information to allow the following to be identified:

(a) a description of the exported item;

(b) the quantity of the exported item;

(d) where known, the end-use and end-user of the item.

(3) Where paragraph (b) or (c) of subsection (1) applies, the record referred to in subsection (1) shall contain sufficient information to allow the following to be identified:

(a) a description of the item;

(b) the period during which the item was the subject of brokering services or technical assistance;

(d) the countries concerned by the services or assistance.

(4) A record referred to in subsection (1) shall be kept for a period of not less than 5 years from the end of the calendar year in which the relevant activity referred to in paragraph (a), (b), (c), (d) or (e) was carried out (in this section referred to as the “retention period”).

(5) The holder of the authorisation shall make the record and documents contained therein available for inspection by or on behalf of the Minister at any time during the retention period.

(6) The holder of the authorisation shall after the retention period make arrangements, other than where the Minister otherwise directs or where legal proceedings are in being relating to the authorisation concerned, for those records to be destroyed or deleted.

(7) A person who fails to comply with subsection (1), (2), (3), (4), (5) or (6) shall be guilty of an offence.

32. Reporting

32. (1) The Minister may at any time give notice to the holder of an authorisation requesting him or her to provide a report to the Minister, in the form and in relation to the period specified in the request, containing information regarding the carrying out by the holder of the authorisation of the activities to which the authorisation relates.

(2) The holder of an authorisation shall provide the information requested by the Minister within the period specified in the request.

(3) The holder of an authorisation shall, in relation to the authorisation, give notice to the Minister as soon as practicable, but in any event not later than 30 days from the date the matter comes to the knowledge of the holder, of any material matter.

(4) An applicant shall, in relation to an application, give notice to the Minister as soon as practicable, but in any event not later than 30 days from the date the matter comes to the knowledge of the applicant, of any material matter.

(5) In subsection (3), “material matter” includes—

(a) any error on the face of the authorisation of which the holder of the authorisation is aware,

(b) any change in circumstances that is likely to have a bearing on the carrying out of the relevant activity to which the authorisation refers by the holder of the authorisation,

section 28(2) or prescribed under section 36(b), or

(d) any error made by the holder of the authorisation in the information provided by the holder under section 28(2) or prescribed under section 36(b).

(6) A person who fails to comply with subsection (2) or (3) shall be guilty of an offence.

33. Requirement to comply with authorisation

33. (1) A person shall carry out the relevant activity to which the authorisation refers in accordance with any conditions to which the authorisation is subject.

(2) A person who fails to comply with subsection (1) shall be guilty of an offence.

34. Revocation, modification or suspension of authorisation

34. (1) The Minister may revoke or modify an authorisation or suspend the operation of an authorisation relating to the export of, or provision of brokering services or technical assistance in respect of a dual-use item or relating to a military item where—

(a) it appears to him or her to be necessary having considered—

(i) a report under section 32(1),

(ii) a notice of a material matter under section 32(3),

(iii) in relation to a military item, the requirement to give effect to any international agreement to which the State is a party and which has been ratified by the State, or

(iv) a request in that behalf to the Minister by the holder of the authorisation,

(b) it appears to the Minister that relevant information was not provided with the application for the authorisation,

(c) in the absence of a notice under section 32(3), the Minister becomes aware of a material matter within the meaning of section 32(5), or

(d) the holder of the authorisation fails to comply with an order of the Circuit Court under section 63.

(2) Before revoking or modifying an authorisation or suspending the operation of an authorisation under this section the Minister shall consider, as appropriate, the matters referred to in paragraph (a) or (b) of section 29(2).

(3) Where the Minister proposes to revoke or modify an authorisation or suspend the operation of an authorisation under this section, he or she shall, in accordance with procedures prescribed under section 36, give notice to the holder of the authorisation of the proposal and shall give the holder an opportunity to make observations in writing to it in relation to the matter.

(4) The Minister may give notice to any person he or she considers appropriate of a proposal to revoke or modify an authorisation or suspend the operation of an authorisation and may request information in relation to the proposal from the person, to be provided to the Minister within the period specified in the notice.

(5) The Minister may, having considered any observations made by the holder of the authorisation and any information provided under subsection (4) decide to revoke or modify the authorisation or suspend the operation of the authorisation or attach conditions to that revocation, modification or suspension and shall give notice to the holder of the authorisation of his or her decision which, in the case of a decision to suspend the operation of an authorisation, shall include the period of the suspension, and, subject to subsection (7), provide the reasons for it and that the decision may be appealed under section 43.

(6) Where the Minister attaches conditions under subsection (5) to the revocation, modification or suspension of the operation of an authorisation, the person who was the holder of the authorisation in the case of a revocation, or is the holder, in the case of a modification or suspension, shall be liable to comply with the conditions notwithstanding that revocation, modification or suspension.

(7) Where the Minister believes that providing reasons for his or her decision to revoke, modify or suspend an authorisation would create a risk to the security or public order of the State, he or she—

(a) may decide not to provide the recipient of the notice with such reasons to the extent necessary in order to avoid or minimise such risk, and

(b) shall include in the notice under subsection (5) a statement to the effect that he or she is declining to give reasons under this subsection for the decision.

35. Termination of suspension

35. (1) A holder of an authorisation whose authorisation has been suspended under section 34 may apply to the Minister before the expiry of the period of the suspension, upon the compliance by the holder with a condition attached under section 34(6) or having otherwise remedied the reasons for the suspension and in accordance with regulations under section 36, to terminate the suspension.

(2) The holder of an authorisation who makes an application under subsection (1) shall furnish information, in such form as may be specified by the Minister, to satisfy the Minister that the suspension of the authorisation may be terminated.

(3) The Minister may request the holder of the authorisation to furnish further information for the purpose of making a decision on an application under subsection (1).

(4) Where the Minister makes a request under subsection (3), the application under subsection (1) shall not be considered until the holder of the authorisation concerned complies with that request.

(5) The Minister, having considered an application under subsection (1) and any information furnished under subsection (2) or (3), may decide to—

(a) terminate the suspension of the authorisation, or

(b) refuse to terminate the suspension of the authorisation.

(6) The Minister shall give notice to the holder of the authorisation of his or her decision, and, subject to subsection (7), provide the reasons for it and that the decision may be appealed under section 43.

(7) Where the Minister believes that providing reasons for his or her decision under subsection (5) would create a risk to the security or public order of the State, he or she—

(a) may decide not to provide the recipient of the notice with such reasons to the extent necessary in order to avoid or minimise such risk, and

(b) shall include in the notice under subsection (5) a statement to the effect that he or she is declining to give reasons under this subsection for the decision.

36. Regulations relating to authorisations

36. The Minister may, in relation to authorisations and, where an authorisation relates to an activity under the Dual-use Regulations or Part 2, for the purpose of giving further effect to the Dual-use Regulations, prescribe any or all of the following matters:

(a) the form and manner in which an application shall be made, including by electronic means;

(b) any of the information referred to in section 28(2)(d);

(c) procedure relating to information sought on foot of a request for information or further information under section 28(3), 34(4) or 35(3);

(d) fees to be paid by the applicant in connection with an application;

(e) classes of authorisation;

(f) conditions that may be attached to each authorisation of a prescribed class, including—

(i) the duration of the authorisation,

(ii) the requirement that the holder of the authorisation provides an end-user certificate in respect of all exports, and

(iii) general conditions appropriate to the class of authorisation;

(g) procedures relating to and information to be provided to or sought by the Minister in relation to a material matter;

(h) procedures relating to and information to be provided to or sought by the Minister for the purposes of revocation or suspension of an authorisation under section 34 or termination of a suspension under section 35 and any other matter for the purposes of those sections;

(i) the form, including electronic form, of an authorisation;

(j) such other matters as the Minister considers necessary or expedient for the purposes of this section.

PART 5 Internal Reviews and Appeals

Chapter 1 Internal review

37. Appointment of decision makers or reviewers

37. The Minister may appoint such and so many of his or her officers as he or she considers appropriate—

(a) to make a relevant decision (in section 38 referred to as a “decision maker”), or

(b) to carry out a review of a relevant decision (in section 38 referred to as a “reviewer”).

38. Internal review

38. (1) A person who has been given notice of a relevant decision may, not later than 14 days from the date of the giving of the notice, request in writing (in this section referred to as a “review request”) a review of the relevant decision.

(2) The review request shall state the reasons why the person making the request wishes the relevant decision to be reviewed.

(3) The Minister shall, subject to subsection (4), upon receipt of the review request, appoint a reviewer to review the relevant decision.

(4) The reviewer shall not be the decision maker who made the relevant decision being reviewed and shall be of a grade senior to the grade of the decision maker.

(5) The reviewer shall, as soon as practicable after being appointed, review the relevant decision, taking into account only the reasons stated in the review request and, as he or she thinks fit may decide to—

(a) affirm the relevant decision, or

(b) vary the relevant decision.

(6) The reviewer shall not later than 21 days from the date of making his or her decision under subsection (5) give notice to the person who made the review request of the decision and, subject to subsection (7), shall provide the reasons for it.

(7) Where the reviewer believes that providing reasons for his or her decision under subsection (5) would create a risk to the security or public order of the State, he or she—

(a) may decide not to provide the person who made the review request with such reasons to the extent necessary in order to avoid or minimise such risk, and

(b) shall include in the notice under subsection (6) a statement to the effect that he or she is declining to give reasons under this subsection for the decision.

(8) A notice under subsection (6) shall inform the person who made the review request that he or she may, under section 43, appeal the decision of the reviewer.

(9) A person may not bring an appeal under section 43 in relation to a decision under this section unless—

(a) the person made a review request of the relevant decision to which the decision under subsection (5) relates,

(b) the person has not withdrawn the review request referred to in paragraph (a), and

Chapter 2 Adjudicators

39. Appointment of adjudicators

39. (1) The Minister—

(a) may, in accordance with this section, appoint such and so many persons (in this Act referred to as “adjudicators”) to carry out the functions assigned to them by or under this Act, and

(b) shall form a panel of persons who have been appointed as adjudicators.

(2) The Minister shall not appoint a person to be an adjudicator unless—

(a) the person is a practising solicitor or barrister, within the meaning of the Legal Services Regulation Act 2015, or a former judge of the Circuit Court, High Court, Court of Appeal or Supreme Court,

(b) the Minister is satisfied that the person has the requisite knowledge or experience of matters relevant to the functions of an adjudicator, and

(c) the Minister is satisfied that it is appropriate for the person, having regard to the security or public order of the State, to carry out the functions of an adjudicator, including by reference to such clearance, verification or background checks as may be prescribed.

(3) A person—

(a) to whom the circumstances specified in one or more of paragraphs (d) to (m) of subsection (8) applies, or

(b) who stands appointed under section 37,

shall not be appointed as an adjudicator.

(4) The Minister, in so far as practicable and having regard to the knowledge or experience referred to in subsection (2)(b), shall ensure an appropriate gender balance when appointing persons to the panel of adjudicators.

(5) Subject to this Act, an adjudicator’s functions under this Act shall be performed independently.

(6) An adjudicator—

(a) shall stand appointed for such period as the Minister may specify,

(b) shall be paid such fees and expenses as the Minister may, with the consent of the Minister for Public Expenditure, National Development Plan Delivery and Reform, determine, and

(7) An adjudicator may at any time give notice to the Minister that he or she is resigning as an adjudicator.

(8) The appointment of an adjudicator under this section shall cease upon—

(a) the expiry of a period specified by the Minister under subsection (6)(a),

(b) the revocation by the Government of the appointment under section 40,

(d) the conviction of the adjudicator on indictment of an offence,

(e) the conviction of the adjudicator of an offence involving fraud or dishonesty,

(f) the making of a declaration against the adjudicator under section 819 of the Companies Act 2014 or the deeming of the adjudicator to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act,

(g) the adjudicator being subject to, or being deemed to be subject to, a disqualification order within the meaning of Chapter 4 of Part 14 of the Companies Act 2014 whether by virtue of that Chapter or of any other provision of that Act,

(h) the adjudicator being nominated as a member of Seanad Éireann,

(i) the adjudicator being elected as a member of either House of the Oireachtas or to be a member of the European Parliament,

(j) the adjudicator being regarded pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act 1997 as having been elected to be a member of the European Parliament,

(k) the adjudicator being elected or co-opted as a member of a local authority,

(l) the adjudicator’s name being removed, where the adjudicator is a practising barrister, from the roll of practising barristers (which shall be construed in accordance with section 2(1) of the Legal Services Regulation Act 2015), or

(m) the adjudicator’s name being struck off, where the adjudicator is a practising solicitor, the roll of solicitors (which shall be construed in accordance with section 9 of the Solicitors Act 1954).

(9) A person who is for the time being—

(a) entitled under the Standing Orders of either House of the Oireachtas to sit therein, or

(b) a member of the European Parliament,

shall, while the person is so entitled or is such a member, as the case may be, be disqualified for office as an adjudicator.

(10) Where an adjudicator dies, resigns, ceases to be qualified for office, ceases to hold office or is removed from office, the Minister may appoint, in the same manner as the adjudicator who occasioned the casual vacancy was appointed, a person to be an adjudicator to fill the casual vacancy so occasioned.

(11) A person appointed to be an adjudicator pursuant to subsection (10) shall hold office for that period of the term of office of the adjudicator who occasioned the casual vacancy concerned that remains unexpired at the date of the appointment and shall be eligible for reappointment as an adjudicator on the expiry of the said period.

(12) The Civil Service Regulation Acts 1956 to 2005 shall not apply to an adjudicator.

40. Revocation of appointment as adjudicator

40. (1) The Government may revoke the appointment of an adjudicator if the Government is satisfied that one or more of the grounds specified in subsection (2) apply to the adjudicator.

(2) The grounds referred to in subsection (1) are that an adjudicator—

(a) has become incapable through ill-health of performing the functions of an adjudicator,

(b) has engaged in serious misconduct,

(c) has failed without reasonable cause to perform his or her functions under this Act for a continuous period of at least 3 months, or

(d) has contravened to a material extent a provision of the Ethics in Public Office Acts 1995 and 2001 that, by virtue of a regulation under section 3 of the Ethics in Public Office Act 1995, applies to the adjudicator.

(3) Where the Government proposes to revoke the appointment of an adjudicator under subsection (1), they shall give notice to the adjudicator concerned of the proposal.

(4) A notice under subsection (3) shall include a statement—

(a) of the reasons for the proposed revocation of appointment,

(b) that the adjudicator may, not later than 30 working days from the giving of the notice or such longer period as the Government may, having regard to the requirements of natural justice, specify in the notice, make representations to the Government in such form and manner as may be specified by the Government as to why the appointment of the adjudicator should not be revoked, and

(c) that where no representations are received within the period referred to in paragraph (b) or the period specified in the notice, as the case may be, the Government shall, without further notice to the adjudicator, proceed with the revocation of the appointment of the adjudicator in accordance with this section.

(5) In considering whether to revoke the appointment of an adjudicator under subsection (1), the Government shall take into account—

(a) any representations made by the adjudicator under paragraph (b) of subsection (4) within the period referred to in that paragraph or the period specified in the notice, as the case may be, and

(b) any other matter the Government considers relevant for the purpose of their decision.

(6) Where, having taken into account the matters referred to in subsection (5), the Government decide to revoke the appointment of an adjudicator, they shall give notice to the adjudicator of the decision and the reasons for that decision.

41. Liability of adjudicators

41. An adjudicator shall not be liable in damages in respect of any act done or omitted to be done by the adjudicator in the performance, or purported performance, of functions under this Act, unless the act or omission concerned was done in bad faith.

42. Rules concerning conduct of appeals before adjudicator

42. (1) The Minister, having consulted with the Minister for Justice, the Minister for Foreign Affairs, the Minister for Defence and any other Minister of the Government as he or she considers appropriate, may prescribe rules in relation to the conduct of appeals falling under this Chapter to be determined by an adjudicator.

(2) Without prejudice to the generality of subsection (1), rules prescribed under this section may include rules relating to the following:

(a) requirements to give notice of an appeal;

(b) the identities, number of, or conduct of, parties to an appeal;

(d) the place at, time at and manner in which adjudicators may sit, including whether and how adjudicators shall sit individually or as a panel;

(e) information or documentation to be supplied to an adjudicator by parties to an appeal, and the manner in which it is to be so supplied;

(f) an adjudicator’s power to require submission by a person of information or documentation that is necessary for the determination of an appeal;

(g) dismissal of an appeal which in the opinion of the adjudicator is frivolous or vexatious or without substance or foundation;

(h) advising the appellant of his or her rights in an appeal, including the right—

(i) to be present at the appeal,

(ii) to present a case in person at an appeal, or

(iii) to present a case through a legal representative at the appellant’s own expense;

(i) procedures applicable to the hearing of an appeal;

(j) the calling and examination of witnesses in an appeal;

(k) time limits applicable to the conduct of appeals;

(l) the manner in which submissions are made to the adjudicator by parties to an appeal or other persons;

(m) procedures for the consolidation and hearing of two or more than two appeals together;

(n) procedures for delayed or abandoned appeals;

(o) procedures for the separation of appeals;

(p) procedures for imposing restrictions in relation to disclosure, publication or reporting, during or after the hearing of an appeal, of a matter that the adjudicator considers—

(i) to relate to the security or public order of the State, or

(ii) to be commercially sensitive;

(q) recording of, or prohibiting the recording of, proceedings before an adjudicator;

(r) without prejudice to section 44(3), requiring certain evidence in proceedings before an adjudicator to be given on oath or affirmation and, for that purpose, providing for an adjudicator to administer an oath or affirmation.

(3) The Minister shall provide, or arrange for the provision of, such support of an administrative nature as the Minister considers necessary to enable the performance of an adjudicator’s functions.

Chapter 3 Review of relevant decisions

43. Procedure for appeal of decision under section 38

43. (1) A relevant person who wishes to engage in a relevant activity in relation to which a decision under section 38(5) has been made (in this section referred to as an “appellant”) may appeal the decision in accordance with this section.

(2) An appellant shall give notice of his or her appeal to the Minister, in such form as the Minister may specify, where the appellant is appealing a decision referred to in subsection (1), not later than 30 days from the date of receipt by the appellant of a notice under section 38(6).

(3) The Minister shall, as soon as practicable after receiving a notice under subsection (2)—

(a) designate an adjudicator or adjudicators from amongst the panel referred to in section 39 to hear the appeal, and

(b) give notice to the appellant of the adjudicator or adjudicators so designated.

(4) An appellant shall—

(a) submit his or her appeal to the adjudicator not later than 14 days from the date on which the notice under subsection (3) is given,

(b) in submitting his or her appeal, state all of the grounds upon which the appeal is made and provide to the adjudicator all of the documents and evidence upon which the applicant intends to rely to support those grounds, and

(c) subject to this Act, and to any rules prescribed under section 42, submit the appeal in such manner or subject to such conditions as the adjudicator may direct.

(5) The Minister shall—

(a) be the respondent to an appeal, and

(b) subject to section 46, when responding to an appeal, state all of the grounds upon which the appeal is responded to and provide to the adjudicator all of the documents and evidence upon which the Minister intends to rely to support those grounds.

(6) An adjudicator may, in accordance with such rules as may be made under section 42, dismiss an appeal where he or she determines that it is frivolous, vexatious or without substance or foundation.

(7) Subject to subsection (8), a party to an appeal shall not be entitled, during the course of an appeal, to make submissions to the adjudicator other than submissions related to the grounds stated, or documents and evidence provided under, subsection (4) or (5), as the case may be.

(8) The adjudicator may, where he or she considers it necessary or expedient for the fair and proper determination of an appeal, require or permit a party to an appeal to—

(a) make submissions to the adjudicator other than submissions related to the grounds stated or documents and evidence provided under subsection (4) or (5), as the case may be, or

(b) provide documents or evidence to the adjudicator other than documents or evidence provided under subsection (4) or (5), as the case may be.

(9) The adjudicator may refuse to consider a submission, document or evidence where the adjudicator considers that—

(a) the submission, document or evidence is not relevant to the appeal, or

(b) it is appropriate to do so in order to avoid undue repetition of submissions.

(10) Bringing an appeal under this section does not suspend or otherwise alter the effect of a decision under section 38 to which the appeal relates pending the decision of the adjudicator.

44. Oral hearing

44. (1) An adjudicator may determine an appeal under section 43 without an oral hearing unless, having regard to the particular circumstances of the appeal, the adjudicator considers that it is necessary to conduct an oral hearing in order to properly and fairly determine the appeal.

(2) An adjudicator may give notice to a person requiring him or her to—

(a) attend an oral hearing, at such time and place as is specified in the notice,

(b) give evidence in respect of any matter in issue in an appeal, and

(3) A person required to attend under subsection (2) may be examined and cross-examined at the oral hearing and any testimony so given shall be given on oath or affirmation.

(4) The adjudicator may limit the time within which each party to a particular appeal may make submissions at an oral hearing.

(5) A person who does or fails to do anything that, if the adjudicator were a court having power to commit for contempt of court, would be contempt of such court, shall be guilty of an offence.

45. Decision of adjudicator

45. (1) Following consideration of an appeal under section 43, an adjudicator shall—

(a) where the adjudicator is satisfied that a serious or significant error was, or a series of errors were, made in making the decision to which the appeal relates, or that the decision was made without complying with this Act or with fair procedures, allow the appeal and remit the matter, for stated reasons, to the Minister to determine the matter—

(i) with a direction to make such determination taking into account the findings of the adjudicator, and

(ii) within such period, not being more than 30 days from the date on which the notice under subsection (2) is given, as the adjudicator may direct,

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