PART 3

Independent Appeals System

Appeals Officer.

6. —(1) The Minister may appoint one or more persons with not less than 5 years' experience as a practising barrister or practising solicitor before his or her appointment as an Appeals Officer (“Appeals Officer”) for the purposes of this Part. The Minister may, for stated reasons, remove such person from office.

(2) It shall be the duty of an Appeals Officer to duly consider and make a decision on appeals under this Act in good time.

(3) An Appeals Officer shall be independent in the exercise of his or her functions under this Act subject to—

(a) the law for the time being in force in relation to sea-fishing boat licensing, including, in particular, the legal obligations of the State arising under any law of an institution of the European Communities or other international agreement which is binding on the State, and

(b) such policy directives in relation to sea-fishing boat licensing as the Minister may give in writing from time to time.

(4) A policy directive given under subsection 3(b) may require certain prohibitions or conditions to be imposed in relation to sea-fishing for the purposes of protecting, conserving or allowing the sustainable exploitation of living marine aquatic species.

(5) Subsection (3)(b) shall not be construed as enabling the Minister to exercise any power or control in relation to any particular case or group of cases with which an Appeals Officer is or may be concerned.

(6) Where the Minister gives a policy directive under subsection (3)(b), a notice of such directive and details of it (including reasons for giving the directive) shall, as soon as practicable after the directive is given, be laid before each House of the Oireachtas and published in Iris Oifigiúil.

(7) The provisions of Schedule 1 shall have effect in relation to an Appeals Officer.

Right of appeal.

7. —(1) (a) Subject to paragraph (b), a person aggrieved by a decision of a licensing authority on an application for a licence or by the revocation or amendment of a licence may, before the expiration of a period of one month beginning on the date of that decision, revocation or amendment, appeal to an Appeals Officer against that decision, revocation or amendment by serving on the Appeals Officer a notice of appeal which may be withdrawn by serving a notice to that effect.

(b) A person other than the applicant for or holder of the licence concerned may only appeal under paragraph (a) if he or she made representations in writing to the licensing authority before the decision in question was made.

(2) The applicant for or holder of a licence to which an appeal relates shall be a party to the appeal.

(3) The notice of appeal shall—

(a) be in writing and served by registered post or by leaving it at the office of the Appeals Officer, during normal office hours, with a person who is apparently employed by or on behalf of the Appeals Officer,

(b) state the name and address of the appellant,

(c) state the subject matter of the appeal,

(d) if the appellant is not the applicant for or holder of a licence, state the appellant's particular interest in the outcome of the appeal,

(e) state in full the grounds of the appeal and the reasons, considerations and arguments on which they are based,

(f) state whether or not an oral hearing of the appeal is requested, and

(g) be accompanied by such fee, if any, as may be payable in respect of such an appeal (including an oral hearing of such appeal) in accordance with regulations under section 20 ,

and shall be accompanied by such documents, particulars or other information relating to the appeal as the appellant considers necessary or appropriate.

(4) Without prejudice to section 12 (1), an appellant shall not be entitled to elaborate in writing on, or make further submissions in writing in relation to, the grounds of appeal stated in the notice of appeal or to submit further grounds of appeal, and any such elaboration, submissions or further grounds of appeal received by the Appeals Officer shall not be considered by him or her.

(5) Without prejudice to section 14 (1), an Appeals Officer shall not consider any documents, particulars or other information submitted by an appellant other than the documents, particulars or other information which accompanied the notice of appeal.

(6) An Appeals Officer may, in his or her discretion, treat 2 or more appeals as, and the appellants as parties to, a single appeal and may at any time separate such appeals.

(7) This section applies to an appeal made under this section against a decision, made after one month after the passing of this Act, of a licensing authority on an application for a licence or to revoke or amend a licence.

(8) A decision of a licensing authority on an application for a licence or to revoke or amend a licence stands suspended where an appeal against the decision is made under this section until the appeal is determined or withdrawn.

Oral hearings.

8. —(1) Subject to subsections (2) and (3), an Appeals Officer of his or her own motion or at the request of a party shall have a discretion to hold an oral hearing of an appeal under section 7 .

(2) A request by a party for an oral hearing of an appeal—

(a) shall be made in writing to the Appeals Officer and shall be accompanied by such fee, if any, as may be payable in respect of such request in accordance with regulations under section 20 ,

(b) if not accompanied by that fee, if any, shall not be considered by the Appeals Officer,

(c) subject to paragraph (d), shall be made within the period of one month referred to in section 7 (1)(a), or

(d) in the case where the party is not the appellant, shall be made within the period referred to in section 10 (2).

(3) An Appeals Officer shall not consider a request for an oral hearing of an appeal received later than the time referred to in subsection (2)(c) or (d) for making a request.

(4) Where an Appeals Officer is requested to hold an oral hearing of an appeal and decides to determine the appeal without an oral hearing, he or she shall serve notice of his or her decision on the person who requested the hearing, on each other party to the appeal and on each person who, in accordance with section 11 , made submissions or observations to the Appeals Officer in relation to the appeal.

(5) (a) In conducting an oral hearing of an appeal, an Appeals Officer may require the licensing authority to give to the Appeals Officer such information in relation to the appeal as the Appeals Officer may reasonably require, and the licensing authority shall comply with the requirement.

(b) An Appeals Officer, in conducting an oral hearing of an appeal, may take evidence on oath and for that purpose may administer oaths, and a person giving evidence at an oral hearing shall be entitled to the same immunities and privileges as if he or she were a witness before the High Court.

(c) Subject to paragraph (d), an Appeals Officer in conducting an oral hearing of an appeal may, by notice in writing to any person, require the person to attend at such time and place as is specified in the notice to give evidence in relation to any matter in question at the hearing or to produce any books, deeds, contracts, accounts, vouchers, maps, plans or other documents in his or her possession, custody or control which relate to the matter.

(d) The following provisions shall have effect for the purposes of paragraph (c):

(i) it shall not be necessary for a person to attend in compliance with a notice at a place more than 10 miles from his or her ordinary place of residence unless an amount of money sufficient to cover the reasonable and necessary expenses of the attendance has been paid or tendered to the person;

(ii) an Appeals Officer shall pay or tender to any person whose attendance is required such amount of money as he or she considers will cover the reasonable and necessary expenses of the attendance;

(iii) an Appeals Officer shall pay to any person who in compliance with a notice has attended at any place all reasonable and necessary expenses of the attendance which have not already been paid to the person and in default of such payment by the Appeals Officer the expenses shall be recoverable as a simple contract debt in a court of competent jurisdiction.

(6) A person to whom a notice under subsection (5)(c) has been given who—

(a) refuses or wilfully neglects to attend in accordance with the notice,

(b) wilfully alters, suppresses, conceals or destroys any document to which the notice relates, or

(c) having so attended, refuses to give evidence or refuses or wilfully fails to produce any document to which the notice relates,

is guilty of an offence.

(7) A person guilty of an offence under subsection (6) is liable on summary conviction to a fine not exceeding €3,000.

Notification of appeals to, and supply of documents, etc., by, licensing authority.

9. —(1) An Appeals Officer shall, as soon as practicable after receiving a notice of appeal, send by post to the licensing authority a copy of the notice and shall arrange for publication of the notice by electronic means.

(2) The licensing authority shall, within 14 days after receiving a copy of the notice of appeal sent to him or her in accordance with subsection (1), submit to the Appeals Officer concerned—

(a) a copy of the licence application concerned and of any drawings, particulars, evidence, written study or further information received or obtained from the applicant for the licence in accordance with a requirement of or under section 222B of the Principal Act,

(b) a copy of any report prepared for the licensing authority in relation to the application, revocation or amendment,

(c) a copy of any document recording the decision of the licensing authority in respect of the application, revocation or amendment and of the notification of the decision given to the applicant for or holder of the licence concerned, and

(d) any supplementary documentation or information which the licensing authority considers to be necessary to enable the Appeals Officer to duly consider the appeal.

Submissions or observations by parties to appeal.

10. —(1) An Appeals Officer shall, as soon as practicable, after receiving a notice of appeal, give a copy to each other party to the appeal.

(2) The licensing authority and each other party except the appellant may make submissions or observations in writing to an Appeals Officer in relation to the appeal within a period of one month beginning on the day on which a copy of the notice of appeal is sent to that party by the Appeals Officer and any submissions or observations received by the Appeals Officer after the expiration of that period shall not be considered by him or her.

(3) Where no submissions or observations have been received from a party within the period referred to in subsection (2), an Appeals Officer may, without further notice to that party, determine the appeal.

(4) Without prejudice to section 12 (1), a party shall not be entitled to elaborate in writing on any submissions or observations made in accordance with subsection (2) or make any further submissions or observations in writing in relation to the appeal, and any such elaboration or further submissions or observations shall not be considered by an Appeals Officer.

Submissions or observations by persons other than parties to appeal.

11. —(1) A person who is not a party may make submissions or observations in writing to an Appeals Officer in relation to an appeal.

(2) Submissions or observations referred to in subsection (1) may be made within the period of one month beginning on the day an Appeals Officer received the notice of appeal or, where there is more than one appeal against the decision of the licensing authority, on the day on which the Appeals Officer last received a notice of appeal, and any submissions or observations received by the Appeals Officer after the expiration of that period shall not be considered.

(3) Without prejudice to section 12 (1), a person who makes submissions or observations to an Appeals Officer in accordance with this section shall not be entitled to elaborate in writing on the submissions or observations or to make further submissions or observations in writing in relation to the appeal, and any such elaboration or further submissions or observations shall not be considered by the Appeals Officer.

Power of Appeals Officer to request submissions or observations.

12. —(1) Where an Appeals Officer is of the opinion that, in the particular circumstances of an appeal, it is appropriate in the interests of justice to request a party or other person who has made or was entitled to make submissions or observations to the Appeals Officer in relation to the appeal to make submissions or observations in relation to any matter which has arisen in relation to the appeal, he or she may, in his or her discretion, notwithstanding section 8 (3) 10(4), 11(3) or 16(4), serve on the party or person a notice—

(a) requesting the party or person, within a period specified in the notice (being not less than 14 or more than 28 days beginning on the date of service of the notice) to submit to the Appeals Officer submissions or observations in relation to the matter, and

(b) stating that, if submissions or observations are not received before the expiration of the specified period, the Appeals Officer will, after the expiration of that period and without further notice to the party or person, pursuant to section 16 (2), determine the appeal.

(2) A party or other person shall not be entitled to elaborate in writing on submissions or observations made in response to a request under subsection (1) or make further submissions or observations in writing in relation to the matter concerned, and any such elaboration, or further submissions or observations shall not be considered by an Appeals Officer.

Appeals Officer to give copy of submissions or observations to appellant, etc.

13. —Where any submissions or observations are made under section 10 , 11 or 12 to an Appeals Officer, he or she shall, as soon as practicable, give a copy of the submissions or observations to—

(a) the appellant, or

(b) where the submissions or observations are made in respect of an application for or revocation or amendment of a licence and the appellant is not the applicant for or holder of the licence, the applicant or holder, unless the applicant or holder has made the submissions or observations,

and the appellant or the applicant or holder, as the case may be, may make comment in writing on the submissions or observations to the Appeals Officer not later than 14 days after having been given them.

Power of Appeals Officer to require submission of documents, etc.

14. —(1) Where an Appeals Officer is of the opinion that any document, particulars or other information is or are necessary for the purpose of enabling him or her to determine an appeal, he or she shall serve on a party or on any person who has made submissions or observations to the Appeals Officer in relation to the appeal a notice—

(a) requiring the party or person, within a period specified in the notice (being not less than 14 days beginning on the date of service of the notice) to submit to the Appeals Officer such documents, particulars or other information as are specified in the notice, and

(b) stating that, if the documents, particulars or other information is or are not received by the Appeals Officer before the expiration of the specified period, the Appeals Officer will, after the expiration of that period and without further notice to the party or person, pursuant to section 16 (2), determine the appeal.

(2) A person who refuses or fails without reasonable excuse to comply with a requirement under subsection (1)(a) is guilty of an offence and is liable on summary conviction to a fine not exceeding €1,000.

Appeals Officer to give copy of documents, etc., submitted to appellant, etc.

15. —An Appeals Officer shall, as soon as practicable, give a copy of any document, particulars or other information received by him or her under section 9 or 14 to—

(a) the appellant, or

(b) where the document, particulars or other information was submitted under section 14 in respect of an application for or revocation or amendment of a licence and the appellant is not the applicant for or holder of the licence, the applicant or holder, unless the applicant or holder has submitted the document, particulars or other information,

and the appellant or the applicant or holder, as the case may be, may make comment in writing on the document, particulars or other information to the Appeals Officer not later than 14 days after having been given the copy.

Determination of appeals.

16. —(1) An Appeals Officer shall have a discretion to dismiss an appeal where, having considered the grounds of appeal, he or she is of the opinion that the appeal is vexatious, frivolous or without substance or foundation.

(2) Where a notice has been served under section 12 (1) or 14(1), an Appeals Officer, at any time after the expiration of the period specified in the notice, may having considered all submissions or observations or documents, particulars or other information, as the case may be, submitted by the person on whom the notice has been served, and any comments duly made on any such submissions or observations under section 13 or on any such documents, particulars or other information under section 15 , as the case may be, without further notice to that person, determine the appeal.

(3) (a) Where an Appeals Officer is of the opinion that an appeal, or an application for a licence to which the appeal relates, has been abandoned, he or she may serve on the person who made the appeal or application, as may be appropriate, a notice stating that he or she is of the opinion and requiring the person, within the period specified in the notice (being not less than 14 or more than 28 days beginning on the date of service of the notice) to make to an Appeals Officer a submission in writing as to why the appeal or application should not be regarded as having been withdrawn.

(b) Where a notice has been served under paragraph (a) an Appeals Officer may, at any time after the expiration of the period specified in the notice, and after considering any submissions made to him or her pursuant to the notice, declare—

(i) in a case where the notice refers to an application for a licence, that the application shall be regarded as having been withdrawn, and

(ii) in a case where the notice refers to an appeal, that the appeal shall be regarded as having been withdrawn.

(c) Where under paragraph (b)(i) an Appeals Officer declares that an application for a licence is to be regarded as having been withdrawn—

(i) any appeal in relation to the application shall be regarded as having been withdrawn and accordingly shall not be determined by an Appeals Officer, and

(ii) notwithstanding any previous decision relating to the application, no licence shall be granted as a result of the application.

(4) (a) Where an appeal is brought under section 7 (1) and is not withdrawn, an Appeals Officer shall, subject to subsection (5), determine the appeal by—

(i) confirming the decision or action of the licensing authority,

(ii) determining the application for the licence as if the application had been made to an Appeals Officer in the first instance,

(iii) in relation to the revocation or amendment of a licence, substituting his or her decision on the matter for that of the licensing authority.

(b) An Appeals Officer shall not determine an appeal as provided in paragraph (a)(i) except in circumstances referred to in subsection (1), (2) or (3).

(c) The determination under paragraph (a)(ii) or (iii) of an appeal shall annul the decision or action of the licensing authority immediately the determination is made.

(5) Where—

(a) an appeal is brought against a decision to grant or amend a licence,

(b) the appeal relates only to a condition or conditions to which the decision provides the licence shall be subject, and

(c) an Appeal Officer is satisfied, having regard to the nature of the condition or conditions, that the determination by an Appeal Officer of the relevant application as if the application had been made to an Appeals Officer in the first instance would not be warranted,

then the Appeals Officer may, in his or her discretion, deal with the appeal by reference only to the condition or conditions to which the appeal relates, and such other conditions, if any, as he or she considers relevant.

(6) An Appeals Officer shall state the reasons and considerations on which the determination of an appeal is based when—

(a) determining the appeal,

(b) notifying the determination in writing, as hereby required to do, to—

(i) the appellant,

(ii) the licensing authority,

(iii) any other party to the appeal,

(iv) any other person who made a submission or observation under section 10 or 11 or submitted documents, particulars or other information under section 12 , and

(v) any other person who requested notification of the determination,

and

(c) arranging publication of the determination by electronic means, as hereby required to do.

Time for appeals, etc., extended where office of Appeals Officer is closed.

17. —Where a provision of or under this Act requires or allows appeals, submissions, observations or a request to be made, or documents, particulars or other information or comment to be submitted, to an Appeals Officer within a specified period and the last day of that period is a day on which the office of the Appeals Officer is closed, the appeal, submissions, observations or request, or documents, particulars or other information or comment, shall be regarded as having been received before the expiration of that period if received by the Appeals Officer on the next following day on which the office of the Appeals Officer is open.

Reference of certain questions of law to High Court.

18. —Where a question of law arises on appeal to an Appeals Officer, the question may be referred by the Appeals Officer to the High Court for decision.

Applications for judicial review.

19. —(1) A person shall not question a decision of an Appeals Officer on an appeal otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) (in this section referred to as “the Order”).

(2) An application for leave to apply for judicial review under the Order in respect of a decision of an Appeals Officer—

(a) shall be made within the period of 3 months commencing on the date on which the decision was made, and

(b) shall be made by notice of motion (grounded in the manner specified in the Order in respect of an ex parte motion for leave) which shall be served on an Appeals Officer and each party or each other party, as the case may be, to the appeal, or any other person specified for that purpose by order of the High Court, and leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed.

(3) The determination of the High Court of an application for leave to apply for judicial review referred to in subsection (2), or of an application for such judicial review, shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court, which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

(4) Subsection (3) shall not apply to a determination of the High Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution.

(5) References in subsection (1) to the Order shall be construed as including references to the Order as amended or re-enacted (with or without modification) by rules of court.

Regulations (Part 3).

20. —(1) The Minister may make regulations for—

(a) prescribing, with the consent of the Minister for Finance, fees payable to an Appeals Officer in relation to appeals, including oral hearings of such appeals; different fees may be payable in relation to cases of different classes or description, and

(b) the purpose of enabling this Act to have full effect.

(2) All fees received under regulations made under subsection (1) shall be disposed of for the benefit of the Exchequer in such manner as the Minister for Finance shall direct.

Offences and penalties.

21. —(1) A person who communicates with an Appeals Officer for the purpose of influencing improperly the consideration by an Appeals Officer of an appeal or the decision of an Appeals Officer in relation to an appeal is guilty of an offence.

(2) (a) A person who in or in relation to an application for a licence, or an appeal against a decision on an application for a licence or the revocation or amendment of a licence, makes a statement in writing which to the person's knowledge is false or misleading in a material respect is guilty of an offence.

(b) Where a person is convicted of an offence under paragraph (a), any licence granted to that person, or to some other person on whose behalf the convicted person was authorised to act, consequent on the application or appeal in relation to which the information was furnished, shall be revoked from the date of the conviction.

(3) (a) Where an offence under this Act has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person as well as the body corporate is guilty of an offence and liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(b) Where the affairs of a body corporate are managed by its members, paragraph (a) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.

(4) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding €3,000.