01/07/15 Senator Daly Speaks on the Communications Regulation (Postal Services) (Amendment) Bill 2015

Senator Daly: I move amendment No. 7:

In page 7, line 37, after “decision” to insert “within 90 days”.

This is an issue relating to the wording “as soon as may be after it is made”. My concern is that the other issues in the Department take over. The Minister said it is already in place but I believe that deadlines are important because one knows whether one meets the deadline. However, down the line we might wonder whether a particular regulation was ever put in place only to find that because there was no deadline, there was no real need to do it. I suggest that “as soon as may be after it is made” is a loose term.

Minister White: I thank the Senator. Section 66D of the Communications Regulation (Postal Services)(Amendment) Bill sets out an obligation on the postcode contractor to draw up procedures for dealing with complaints by owners or occupiers of property relating to the use of postcodes by the contractor or by a value added reseller. As is the general rule on primary legislation, this section of the Bill contains the general principles and policy governing the complaints process and, pursuant to section 66D(7), the Minister is given a regulation making power to set out the details of the complaints process. I confirm for the House that the regulations will make provision for the procedure to be followed in investigating complaints, the requirements to be complied with by complainants, the remedies and redress available to complainants, and any other matter considered necessary or appropriate to secure the effective protection of complainants. Furthermore, pursuant to section 66D(1), the postcode contractor will set out a detailed complaints process in its code of practice, and that code is referred to in section 66E. I repeat that the postcode contractor has consulted with the Office of the Data Protection Commissioner in the drafting of the code of practice.

The Senator raises a fair question, which I have considered. The idea of a time limit can be provided for but I respectfully suggest to Senator Daly that the proper and appropriate instrument in which to include a time limit would be in the regulations that will be enacted pursuant to section 66D(7) and the postcode contractor’s code of practice. I do not believe it is necessary or even appropriate to amend the primary legislation but I am prepared to agree, having considered the issue the Senator has raised, and it is a fair issue, to include a time limit in the relevant regulations in response to the point he makes. I can confirm that the time limit will also be provided, if the Senator can accept my good faith in this regard, in the complaints procedures to be included in the postcode contractor’s code of practice. On that basis, the Senator might be agreeable not to pursue an amendment to the primary legislation but to rely on my good faith and intention to do as he wishes us to do but to do that by way of regulations.

Senator Daly: I thank the Minister for the reply. We will not press the amendment.

—-Later—-

Senator Daly: I move amendment No. 11:

In page 8, line 5, to delete “may” and substitute “shall”.

I know I will be relying on the Minister’s word on this one. We are all conscious of the words “may” and “shall” inserted in Bills. The Bill refers to the requirement on the Department regarding the procedure to be followed in investigating complaints, the requirements to be complied with by complainants and so on. I know the Minister is doing it but the reason behind the primary legislation is that the onus is on the Department that it must do it. We have been given assurances that it is in the process of doing it but, as often happens, between the primary legislation and the regulations, sometimes it does not happen. The word “may” is inserted to allow for the opt-out in that if it does not happen, no one is breaching anything. I know the Minister is doing it and that it is all in train, but the reason behind the primary legislation is to keep the word “may” out of something. The word “shall” is far more important and powerful. I ask the Minister to consider inserting the word “shall” in the Bill. This is the reason for some of the concerns about the Bill and the reason the Data Protection Commissioner asked for this primary legislation in regard to remedies and redress available to complainants. It must be done. This is the core issue behind the legislation but we are saying in the primary legislation, that we might do what the commissioner said. The primary legislation is about ensuring that all the regulations will, not may, meet the requirements of the Data Protection Commissioner.

Minister White: Although the regulation-making power in the proposed section is expressed as “may” and it is not framed as a mandatory obligation on the Minister, it remains the case that the regulations permitted under the section form part of the overall scheme of the Bill. The Data Protection Commissioner has been enormously helpful and supportive of this entire process, but the decision to bring forward this legislation was my decision. It was the Government’s decision on my recommendation. I do not want anybody to think we are in some sense being directed to bring forward legislation. Although the Data Protection Commissioner has been extremely helpful and supportive it is my call and I take absolute responsibility for having this legislation drafted and bringing it before both Houses.

I am tempted to tell the Senator I shall certainly bring forward the regulations. The Department is drafting them. It is part of the scheme of what we intend to do. Substituting the word “may” with “shall” would not make any constructive difference to the process as it stands. When I was a Member of this House we had debates on other legislation as to “may” and “shall”. The view taken generally about the use of the word “may” is it is in legislation to enable a Minister to do something. It is not mandatory that a Minister do it but it is there to say it is part of the scheme of what it is intended to do. One puts into primary legislation the basis on which it would be done, in other words an enabling provision for the Minister to do it. It will be done and it shall be done. It is not necessary to put it in the legislation. Regrettably, in the circumstances I will not accept the amendment, but I take very much the thrust of what the Senator has said and assure him of my bona fides in this regard.

Senator Daly: 

It is a drafting issue. The intention is “shall” and “may” allows for cover for the Department if it is not done. If no regulations are put in place anybody in the press can say the Department is not obliged to do it, which it is not under the legislation.

Our job here is not about the Minister or the officials but the process. According to the process if a Department under legislation shall do something then it must be done. There are consequences. I take into account that regulations form part of all legislation and they are very important because we cannot deal with minute detail in the primary legislation. Perhaps the Minister will examine it once more and explain to the other House that this is the kernel of the issue. What I look for in something like this is that the Department must do it. Delays can happen. A question might be sent to the Attorney General before the summer but then another piece of legislation might come before the Department to which the Minister’s energy and that of everybody else would be turned. This is the difference. Of all the lines in the legislation, and I thank the Minister for bringing it forward, this is the one with which we have an issue. This is the kernel of it. We will not press it to a vote but it is about requiring the Department to ensure if, God forbid, the Minister was not in office in five months time because he was promoted to Tánaiste and leader of the party at least his successor, the Department and the system would be required to ensure the regulations which the Minister wants in place shall be put in place.

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