Thursday, 19 November 1987
Seanad Eireann Debate
An Leas-Chathaoirleach: For the information of the House we are circulating a list of the grouping of the amendments. With amendment No. 1 we will discuss Nos. 2, 3, 22 to 25, 28 to 33, 41 to 51 and  55. They are consequential on No. 22 and may be discussed together.
Mr. B. Ryan: The more I have read this Bill the more, I must confess, I have a certain respect for the people who drafted it and for the Minister. The more one thinks about it and the more one gets the hang of it, the more one realises how difficult an issue it was. Anything I say, will I hope, be judged against the background that I appreciate the complexity of the issue and the attempt to balance a very clear need with the need to deal with it in a realistic way. I want to ask the Minister about section 1 (1) (b). This is where I am wearing my censorious hat. It will fluctuate from time to time today. On page 4, about one-third of the way down, the Bill refers to a video work being shown as a moving picture. It reads:
I wonder is there any need to have that there. I did not table an amendment to it because I did not see it as an important thing but I wonder if there is any need to have the reference to a moving picture in that section at all. It seems to me to be an invitation for some people to by-pass the objectives of the Bill.
I do not want to be letting my imagination run away but given that there is a large industry in this area, given that  there are huge amounts of money to be made with minimal risk, it is possible to envisage the use of still material excerpts from banned videos, for instance, excerpts from some of the more appalling pornographic magazines that we are thankfully spared in this country. I would like to know is there any particular reason for putting it in. In other words, can we not just leave it out? Is there a reason that I have not thought of, which is quite conceivable, for leaving it in or can we just drop the thing entirely? What difference would it make if there was no reference to moving pictures there?
Mr. Collins: That is the most ingenious way I ever experienced during my membership of the Oireachtas of having an amendment moved without having an amendment tabled. The purpose of Senator Ryan's suggestion would be to delete a sub-section. I can understand why the Senator queries the existence of such a phrase and I can assure him that if it were not necessary it would not be there. “Video work” is defined as:
any series of visual images (whether with or without sound) — (a) produced, whether electronically or by other means, by the use of information contained on any disc or magnetic tape, and (b) shown as a moving picture.
The word “series” is important because it will have the effect that a video recording may contain more than one video work for the purpose of the Bill. For example, a video recording could be a trailer for one production followed by a full length version of a different production and might be treated as containing two videos. A series of visual images not shown as a moving picture, for example still images produced for advertisements, will not be a video for the purposes of the Bill. I am satisfied that there is a need for it, that it is essential to the Bill and that is basically the reason why it is there.
I thank the Senator for his comment that the more he read the Bill the more he understood the complexity of the Bill and how difficult it is to set on paper  this type of legislation for the purpose of achieving what we all want to achieve. There was general agreement on this during the Second Reading of the Bill. It is a difficult Bill certainly and the particular subsection is required as part of the Bill.
Mr. Ferris: The Minister must realise that there are other sections in this Bill and if the Minister's response to Senator Ryan is not satisfactory he will have an opportunity on another stage of the Bill to table an amendment. It is in that context that he is questioning the necessity for it. As a result of the Minister's answer it is obvious that we need to look at the possibility of amending this on Report Stage because from the Minister's statement to Senator Ryan it is clear he has no power to ban a still picture which may be banned in the overall video and could be offensive. Because the words “moving picture” are included in this Bill it does not give the Minister any power unless there is some other Act which would cover a still picture, which could be pornographic or morally or sexually offensive. That is the subject of his query and that is now the subject of my query to the Minister.
Mr. Collins: I am advised that the matter raised by both Senators is catered for in the Censorship of Publications Act, 1929, section 18. I do not know whether I should read it to the House. If the House likes I will read it.
It shall not be lawful for any person to sell or offer, expose or keep for sale, or import for sale any indecent picture and every person who sells or offers, exposes, or keeps for sale or imports for sale any indecent picture in contravention of this section shall be guilty of an offence under this section and  shall be liable on summary conviction thereof, in the case of a first offence, to a fine not exceeding fifty pounds and, in the case of a second or any subsequent offence, to a fine not exceeding one hundred pounds or, at the discretion of the court, to imprisonment with or without hard labour for any term not exceeding six months and, in any case, forfeiture of every indecent picture so sold or offered, exposed, or kept for sale by him.
Mr. B. Ryan: I very much doubt that the Censorship of Publications Act, 1929 contains any reference to visual images, produced electronically or otherwise, by the use of information contained on any disc or magnetic tape. I did not raise this to be in the least bit awkward. We are all agreed on the objectives of the Bill. I simply raise it because I see it as a possibility for a small industry to take off. I cannot be persuaded by the Minister. I will have to follow the line suggested by Senator Ferris. I did not put down the amendment because I decided I would like to ask what the reason for this was. I try to put down amendments where I have a very clear idea of what is intended and a very clear idea of what I wish to be intended. Where I do not, my view has always been that I should ask for information from the person with the greatest amount of information who is the Minister, and in the light of that to put down an amendment. At this stage I would simply give notice that I propose on Report Stage to put down an amendment and we can discuss it.
Mr. Collins: I accept that and to help the Senator in the framing of his amendment I should tell him that our legal people had difficulty with regard to getting the word “picture” to cover a video film whereas a visual image is regarded as a picture. If the Senator wants, in the course of Report Stage to place an  amendment on the Order Paper we will go into that in more detail.
An Leas-Chathaoirleach: With amendment No. 3 it is in order to discuss Nos. 23, 24, 25, 28, 29, 30, 31, 32, 33, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51 and 55. These are all consequential on amendment No. 22.
Mr. Hogan: The purpose of putting down this amendment is to enlist the support of the Minister for a classification system in relation to the Video Recordings Bill. The definition of a limited supply certificate does not give any indication that there will be a form of classification in the Bill and the definition I propose would go some way towards providing some regulation in the classification system in the video industry. The Minister would probably frown on the legislation that has been passed in the UK because of the costly nature of that system. He went to great lengths during the course of his Second Stage speech to say that anything that would incur extra costs would pose a very serious problem.
I submit to the Minister that we are leaving the legislation extremely loose if we do not include some classification system in this Bill. It is putting extreme pressure on the film censor and it is creating a two tier system in cinematic terms and in the video industry. In the UK they have three tiers of classification. That is a universal system for children, there is a parental guidance system and there is one for 15 and 18 years old. In the cinema here we have a certification and classification system of 16 and 18 years old. The Minister should have another look at the definition of what he would consider worthy of supply to the video industry  and classification is the only way in which we can get order into the video works that are being published. I appeal to the Minister to insert a new definition in the Bill which would limit the supply of materials through various classes of people.
Mr. Cassidy: I agree with Senator Hogan on this. He has a very valid point. For cinema classification there are three classes and there are special cases where they include a fourth one in the case of violence or adult films. The Minister should accept this amendment without any further debate because it is essential to have a classification of videos. I do not think we should delay the House any longer on this.
Mr. Ferris: This amendment raises the whole question of classification. In various submissions we have had from the industry, particularly from the Video Alliance of Ireland, they were concerned about the lack of real classification in the Bill. In their submission to us they said that because of the lack of classification in the Bill the censor would be faced with a dilemma and that a grading system or a system of classification for video films passed for viewing was essential. This would give the film censor some area of jurisdiction regarding the suitability or not of particular videos for particular types of viewing.
Admittedly the Minister in an amendment to a later section has taken out the word “general” which had caused consternation to everybody from religious fanatics to ordinary family people. It was feared that films and videos which in the opinion of all of us and of the Minister, and of the Government, and of the trade are not suitable for general viewing would have been able to slip in to the market because the world “general” was put in. I was pleased to see the Minister's amendment and Senator Hogan's amendment deleting that definition of the word “viewing”.
We are talking in this amendment about classification. I would like to hear  the Minister's views on this amendment. Why did he not accept the system they have in Britain where videos are classified in the same way as films? That would allow the film censor to make a decision as to the suitability of the video for people under 18 years of age or over 18. In Britain they have three different sections. There is support from both sides of the House for this concept. Having listened to submissions from all sides, including various interested bodies and the trade, it will be interesting to hear the Minister's response to Senator Hogan's amendment about classification.
Mr. McEllistrim: I wish to oppose this amendment. I said on Second Stage that if we had a limited certificate on videos people under 18 years of age would get to see them. If people over 18 years of age can purchase or hire a video, when the parents are out at night their children will have a look at that video. I made a comparison between our Bill and the regulations they have in Britain and I said that what suited England would not be suitable here. The only way we can prohibit those videos from being seen by young people is to ban their sale completely. I agree with what was in the original Bill and I wish to oppose this amendment.
Mr. B. Ryan: There are a number of things here. I understood the intent of the Bill to be — I think the Minister confirmed this by his own amendment — that what is currently regarded by the film censor as acceptable for display in the cinema is an index of the standard that will be acceptable in terms of videos on sale in this country.
We are not trying to tighten up the standards of censorship by the back door. We are trying to generalise an acceptable standard of censorship. We have to appreciate the difference between the video industry and the film industry. The video industry is very close to becoming the equivalent of the paperback industry. There are video shops springing up in the most extraordinary places. There are mobile video libraries going around the  country. Imagine a system which said that every book in every book shop had to have a stamp on it saying: “This is suitable for parental guidance under 15 or 18”. It is one thing in the confines of a cinema to impose conditions like that. It is a different thing to impose conditions in shops. It means that every video will have to be seen by the film censor.
My understanding of the intent is that when the censor is satisfied that a video is OK, he can give a certificate of supply very informally without having to go through the details. If we impose a classification the burden of work will be enormous. I do not know how the British system has worked but I think parents will have to be left with the responsibility in this area. The scenario of parents going out and the children watching videos that are unsuitable for them is not something the Legislature can deal with. If parents do not accept responsibility for what their children do in their own home, no amount of legislation will deal with it.
I do not think the Oireachtas can legislate for what happens within the home. It is not possible and, therefore, such amendments as this, however well intentioned, are not workable. A parallel comparison with the paperback industry is the best I can make. If one were to be consistent about this one would have to have every paperback novel censored. Many people would argue that we could do without a lot of them. A paperback novel would have to be stamped 18 years or 15 years of age and if one were to do that with the paperback industry one would attract attention to certain books rather than detract attention from them.
I see no purpose in this. Responsibility will have to be left for people under 18 with the only people who can deal with things like their moral formation, their parents and their schools. Notwithstanding what is said about our young people, by and large from what I know of teaching young people, they are extremely good. In fact, they are a lot better behaved than my age group were when we were in college. Our young people are more than capable of handling  their responsibilities. We should not get carried away with excesses of paternalism.
Mr. Collins: The question of classifying video films for limitation of supply according to the age of the purchaser or the renter of the film was considered very carefully when the Bill was being drafted. There can only be one objective for having a classification system, that is, to prevent people of a certain age from viewing certain films. I am fully satisfied that there is no way in which this objective can be achieved as was said by Senator Ryan. The State cannot control the age of people viewing a film once it is supplied. That is why the Bill does not provide for a classification system.
If a film is allowed to be supplied to adults only, this will not guarantee that it will not be viewed by people under the age of 18. A person over 18 may buy or rent a film and show it to children or the film may be available in the home. As was said by Senator McEllistrim, it may be viewed by children unbeknown to their parents. The only effective control of obscene video films is to prohibit their supply completely.
Section 10 of the Bill will impose certain restrictions on the exhibition of video films. It may be argued that, since there is a classification system for cinema films, there should be a classification system for video films also. The two are not comparable. Control can be exercised on those entering a cinema. If a person is under the age for which a film is certified, the management should refuse admission. In this way the person under the stipulated age can be prevented from viewing the film. This is not the case in relation to video films in so far as viewing is concerned. A certificate could only limit the supply of the film to people over a certain age group. Once it is supplied there is no possibility of control by the State over those who view it no matter what their age except for the partial control proposed in section 10.
Apart from the argument I have outlined, two other considerations arise.  These are: first, the difficulties in enforcing any statutory limitations as regards supply to people of a certain age and, secondly, the cost of the classification scheme. I will deal first with the difficulty of enforcement. The Garda will have a considerable amount of work to do in enforcing the provisions of the Bill as it is. There will be complaints about prohibited video films being available, films which should be labelled being supplied without labels and other offences under the Act. The gardaí will have to investigate those complaints. They should not be asked to attempt to impose controls as regards supplying to specific age groups when the objectives of that control cannot be achieved. This would be a waste of the time of the gardaí. Apart from that there would also be a serious difficulty in getting evidence in relation to supply to people who were alleged to be under the specified age. I am quite satisfied that the use of Garda time in this area would be wasteful.
The second additional point I referred to is the cost of the classification system. I said in my remarks on Second Stage that the classification system operated in the United Kingdom for video and cinema films cost approximately £1.1 million to operate in the year just gone by. Fifty-three staff were employed. The projected cost of the operation envisaged under the Bill and the existing system of cinema censorship is approximately £300,000 and the number of people likely to be employed is ten. It would be irresponsible to spend an additional £800,000 on a refinement of the controls on video films when I am quite satisfied that refinement would not achieve the objectives at which it is aimed, the control of viewing of video films. However, the extra cost — and I say this in particular to Senator Hogan — has not been crucial in deciding whether there should be classification.
On Second Stage Senator Hogan spoke about my concern about the financial impact of classification. To set the record right I say again that this is not so. The extra cost of any control system will have to be borne by the video film business.  There will be no additional cost to the State. My views on classification, therefore, do not stem from cost concerns but from common sense and a feeling for what is reasonable and practical.
A classification system also gives the purchaser or renter of a film information regarding the age group for which the film is suitable. This information would be useful to parents in relation to video films to be used by their children. Most of the video films will be certificated for supply under the Bill and will be packaged for the UK market. Therefore, they will have the British Board of Film Classification label on them. This is on them as it is. This will give some indication to purchasers, renters of films and parents of the suitability of films for particular age groups. In addition, the Irish Videogram Association might consider attaching classification information to any video films which do not have UK labels. They might consider doing this as a service to their customers. However, I would not attach too much importance to the UK system.
I ought to point to one aspect of that system which would not be appropriate for this country, that is, the inclusion of a category of video which may be supplied only through sex shops. Senator McEllistrim made that point during the course of his Second Stage contribution. If we have it properly, and we have it correct, we will achieve what we want to achieve in respect of the criticisms and comments that have been made on it today.
Mr. Hogan: I appreciate the remarks of the Minister about the difficulties the gardaí would have in establishing the material that would be fit for a particular age group if it was classified under the Bill. I do not accept what he said in relation to the costing of the classification. The video industry have made it clear to the Department that they are prepared to shoulder the cost of bringing in a classification and a registration system which we will discuss later. We are not comparing like with like when we compare the UK system with ours  because, if it cost £1.1 million to classify material in Britain, the amount of material that is available on the British market is not similar in any quantity to the amount of material we are talking about here. It is being pirated into this country.
Mr. Collins: We must be careful on the copyright point. That is a totally separate point and we will be coming to that later. I very much hope and I want as much as anybody here to put that right too. It is a separate issue and it does not come within the ambit of this Bill, but it is my intention to ensure that we seal off that.
Mr. Hogan: In view of the Minister's remarks — I totally agree with the Minister that the State cannot guarantee who can view material or who cannot; it is the parents' ultimate responsibility and no State can legislate for that — I give notice that on Report Stage I will consider having a look at this section again and the possibility of classification. I will consider the Minister's remarks in the meantime.
This amendment may or may not be necessary because section 1 under the heading “Interpretation” talks about exempted work meaning a video work that, taken as a whole, is designed to inform, educate or instruct. It is concerned with religion, music, or sport, or is a video game. I put down this amendment to simplify what I believe to be an objective which is that films or videos to do with certain areas of human activity, most notably sexual activity, could legitimately be interpreted as coming under the provisions of subsection (3) (a) about indecency or obscenity.
Very explicit films dealing with the  AIDS problem, and particularly films being used by members of the gay community to educate their own members about the risks involved in certain forms of sexual activity, could quite legitimately cause some people offence, but they are extremely important in terms of not just protecting the health of the gay community in our society but protecting the health of the community at large. I fully accept — it is in the Explanatory Memorandum — that there is a necessity to ensure that obscene films are not simply allowed to masquerade as educational films and therefore bypass the entirety of the provisions of this Bill.
At the same time it should not be necessary that films, simply because they contain quite explicit sexual material, should have to go through the film censor's office when, in fact, they are well intentioned and perhaps are acceptable to the medical community and to the Department of Health as filling a necessary purpose. It seems to me that it ought to be possible for the Minister for Health to give approval for certain films to be shown in connection with either sex education or education in relation to AIDS without having to go through the censor. I do not think the film censor is necessarily the best judge of what is appropriate. Therefore, I propose the amendment that films which are for any purpose approved by the Minister for Health ought to be exempted works and exempted from the provisions of this Bill.
Mr. Collins: Section 2(1)(g) provides that the supply of video recordings for the purposes of use in training or carrying on of a medical or related occupation shall be an exempted supply. The amendment seeks to add to these purposes “any purpose approved by the Minister for Health.” I am advised that the amendment is unnecessary because the wording in section 2(1)(g) covers all the medical purposes that require to be covered. Moreover, the amendment would be inappropriate because it gives no indication as to the additional purposes which the Minister for Health should approve, or how he should express his approval,  whether by statutory instrument — if so that it be laid before each House of the Oireachtas — or whether it be by a circular letter or a separate letter to a teaching hospital.
We believe basically that the amendment proposed by Senator Ryan is not necessary. If I could refer the Senator to page 3 of the Bill, section 1, line 19 where “exempted work” means a video work that, taken as a whole, is designed to inform, educate or instruct. That covers the point that Senator Ryan made.
Mr. B. Ryan: Given what the Minister has said, I have no problem in withdrawing the amendment. It was intended to meet something and if the Minister assures me that what is intended can be met without it there is no point in pursuing it.
I have profound reservations about this subsection. It simply means that an exempted supply is a supply outside the State. I am not so sure that there is any merit in excluding videos which are to be supplied outside the State from the provisions of what we believe to be reasonable standards in the areas of violence and obscenity. It is not the intention to develop a dirty movie business here. Unless there is a good reason to exempt supply outside the State we should not make it legal for people to supply films that perhaps we regard as unacceptable here.
We should not exempt them from the provisions of this Bill simply because they are being supplied outside the State. It would raise interesting questions about what we could produce in this country and export to Northern Ireland, perhaps in a less than legal way in Northern Ireland but which could be produced here. Unless there is a good reason I  appeal to the Minister to drop that. It may well be an attempt to minimise regulations for some industries in the area of exempted supply. If the films are exempted works as defined by the Bill then they would be exempted works and therefore would not come under the provisions of this Bill. If they are not exempted works, in other words if their content comes under the provisions of this Bill, then it is assumed that many of them need to be seen by a censor before they can be seen in this country. If that is the standard we apply, then I do not see why we should apply a different standard from what is being supplied outside the country.
Most of the areas of business promotion, etc., are covered by the concept of exempted work. We are talking here about exempted supply. I do not think works which are not exempted works should be exempted from the whole question of supply certificates simply because they have been supplied outside the State and I do not think the argument of burden of work will arise here because I do not think there is such a huge industry here in this area. We should be consistent in our standards, both within the State and outside the State. This could send me off at a tangent about mercury soap in County Wicklow, about different standards applying at home and abroad. I do not think we should do that and I do not think we should do it here anymore than anywhere else.
Mr. Collins: I thank Senator Ryan for his comments in relation to this amendment. The purpose of paragraph (c) is explained in paragraph 23 of the explanatory and financial memorandum which was circulated. Certain cases of supply of video recordings that take place in the course of the video trade, for example, the actual manufacture of a recording, must be exempted from the restrictions of supply. This object is secured by sub-section (1)(b) of section 2 as explained in paragraph 15 of the memorandum. Among these cases is the case where the supply is not made with a view to the  eventual supply of the recording to the public.
Subsection (3) defines supply to the public for this purpose. Paragraph (c), the paragraph which the amendment seeks to leave out, provides that a “supply outside the State is not to count as a supply to the public”. The Bill is concerned about what kind of video works are available for viewing within the State. If a video work should be produced in the State for export only it would be pointless to impose on the producer the burden of submitting it to the Irish film censor for his certificate when the country for which the work is destined may have different views from ours as to what kinds of work should be available to their public.
The thinking is that if a group of people here decide to make a film for export that rather than put them to the additional expense of submitting it to the Irish film censor for a certificate when it is not going to be on view here, we leave it to the producers to submit it to the appropriate film censor, or submit it to the appropriate authority of whatever country the particular film is destined for.
Mr. B. Ryan: The Minister has been very frank. He is effectively saying that we should not attempt to apply our standards elsewhere. Given what I think to be the reasonably liberal provisions of this Bill, I am not sure that we should not suggest that the sort of activity that is implied in allowing other peoples' standards to be applied to the making of videos to be exported from the country is not a slightly dubious standard. As I have said frequently, pornographic videos do not just degrade the people who watch them, there is a degradation involved for the people who act, if one can use that word, in them.
I appreciate that the use of young people or, indeed, women, in what would be regarded as offensive activities, is probably already covered by the criminal law. If what is being filmed is a crime under the criminal law then it appears that there is a good case to be made that  the video made on it ought to come under the law of this country. If it is simply said that supply to the public does not exclude supply outside the State then we are imposing a minimum standard on those who make videos in this country, to conform with what we regard as reasonable standards. This would be better for the Irish video industry, for the Irish film industry and for this country's general status and position as a country with some belief, as I have said frequently, in certain absolutes in morality to which I subscribe.
I do not believe in a relativist morality; I believe there are certain absolutes in morality. I have said frequently, for instance, that rape is absolutely wrong and I do not believe that freedom of speech arises in the issue of justifying something like that. The Minister, perhaps, has been over-persuaded by some people about this, that there is a problem. There is a large amount of work in the area of business promotion in those areas that legitimately is made where videos are used for educational or other work. The Minister quite rightly has decided to exempt all of that from the provisions of this Bill. All of that work would be exempted from the provisions of any question of supply certificate. We are talking about works which are not exempted works which can be supplied outside the State. There is a moral position in this. I invite the Minister to reconsider the whole position of whether there is any overwhelming reason to exempt supply outside the State.
Mr. Collins: I appreciate the points raised by Senator Ryan. I would like to give further consideration to those points. Perhaps the Senator might give me an opportunity of doing that and we will leave it for Report Stage.
Mr. B. Ryan: I do not like champagne. Whatever about my education and my income, my cultural and other tastes are essentially proletarian. A very senior member of the trade union movement said to me recently that, even if I dressed like a proletarian, I would never look like one. That was a very senior trade unionist who is earning a lot more than I am earning.
The first question is “neither a supply for reward nor a supply in the course of furtherance of a business.” That is an exempted supply. I know later on there is a prohibition on exhibition. I am a little bit worried about private showings of things like promotional films for paedophiliac exchange and those who would campaign, perhaps even in private, for the liberalisation of the laws. I would be totally opposed obviously to anything involving sex with children. I have a very strong view that society has an obligation to be as tolerant as possible about adult behaviour which involves adults and as protective as possible regarding our children.
It is a long held view of mine, and it is one of my reasons for supporting many areas of censorship, that I think our children are entitled to grow up free from those sort of pressures. I will not make a big thing out of it. I invite the Minister  to consider if the Bill as it stands would adequately protect us from the sort of pressure groups who believe that sex involving children is a good idea. I do not think anybody should ever be allowed to show videos which involve children being abused or misused in private, or anywhere. It is an indication of a sense of moral absolutism that this country ought to insist upon. Therefore, I simply invite the Minister to think about it between now and Report Stage.
Mr. Collins: I agree totally with the views expressed by Senator Ryan. I am sure every Member of this House would share that view. We all do. We not alone share it but strongly support that view. I believe that in what we are doing here today we are doing as much as we can to ensure that the situation the Senator mentioned will not happen. I am sure Members of this House and the other House would help whatever Minister might be there at the time to ensure that any loophole that might arise would be dealt with speedily because it is a view we all share very strongly. I thank the Senator for raising the point.
.—(1) A person shall not engage in the supply of a video recording containing a video work unless he is, or is the servant or agent acting as such of, a person who holds a video supply licence for the time being in force and the supply of the video
The Labour Party are suggesting in this amendment that we should add a new section 3 which would come into force before the existing section 3 in the Bill which I am delighted the Minister has seen fit to amend so that the question of general viewing will now be interpreted as “fit or unfit for viewing”. The reason I am suggesting this new section 3 is that we have legislation which governs the importation of banned videos. Most of the videos for sale and distribution in this country are imported.
There is existing legislation to govern importation of prohibited materials. It is pointless worrying about it in a Bill like this. We hope that the rigours of the law are being and will continue to be applied in this area. That likewise would apply to pirated material because, if pirated material is discovered, there is an existing law which will allow the Garda Síochána or any other enforcement agency to prohibit and to impound it.
This new section 3 is suggesting that we register the outlets, in other words, that each person who is selling videos or renting them would be registered and pay a licence fee. This would give the Minister and his Department an instant record of every outlet in the country. It would also strengthen the Minister's hands in an area in which there are so many illegitimate outlets in vans and premises known only to certain people.
The total market in the video business in Ireland at the moment is a staggering £36 million. There are over 29 million videos distributed to the market. The illegitimate market, which we are all concerned about and which is not really addressed in the Bill at all because the Minister feels there is existing legislation to cover it, is worth almost £22 million. If we look at the VAT rate on that the income to the State in this area is enormous.
 The legitimate industry and the legitimate outlets are prepared to be registered and to pay a nominal registration fee to put them into the legitimate bracket. If people are caught distributing films who are not registered as official outlets, the Minister will have real power of confiscation and will be able to track down the illegitimate business.
The amendment is reasonable in that it registers the supply. I am quoting as the source of these amendments the Casual Trading Act, 1980, where there are similar requirements on the business industry. To carry on legitimate business at various outlets people are required to be registered or certified and to hold a licence from the Minister or his Department to carry on trading. The wording of the first amendment is:
A person shall not engage in the supply of a video recording containing a video work unless he is, or is the servant or agent acting as such of, a person who holds a video supply licence for the time being in force...
In other words, there would be a time factor on each licence, 12 months or whatever other period the Minister might think fit. The supply of the video recording containing the video work would be in accordance with the licence. That would immediately cover the area I am worried about, the illegitimate trade. A sub-section of that new section 3 would provide that a person who contravened the section would be guilty of an offence. We can talk about the penalties the Minister might lay down.
.—(1) Subject to the subsequent provisions of this section the Minister shall, on the application in writing of a person therefor and on payment of a fee to be prescribed under this Act, grant to the person a licence (referred to in this Act as “a video supply licence”), in such form and specifying  such matters as the Minister may determine, authorising the person to engage in the supply of video recordings containing video works.
(2) An application for a video supply licence shall be made to the Minister not less than 30 days before the first day on which it is intended to engage in the supply of video recordings containing video works.
These are all strengthening powers for the Minister and will also protect the legitimate industry and help him to rid this country of the illegitimate trade. A person who contravenes that paragraph in that subsection would also be guilty of an offence. Subsection (4) states:
The Minister may revoke a video supply licence if he is satisfied that a condition of the licence is being or has been contravened or if the person to whom it was granted is convicted of an offence under this Act while he was the holder of a video supply licence.
The Minister shall not grant a video supply licence to a person who was convicted of two or more offences under this Act if the latest conviction occurred less than five years before the first day on which the person proposes  to engage in the supply of video recordings containing video works to which the application for the licence relates and, two, at least, of the convictions occurred after the expiration of the last period (if any) of disqualification by virtue of this subsection for being granted a video supply licence.
(8) A person who applies to the Minister for a video supply licence shall furnish to the Minister such information as the Minister may request for the purposes of the exercise of his powers and functions under this section and, if the person fails to comply with this sub-section, the Minister may refuse to grant him the licence.
These amendments are consequential. I want to put some semblance of order into this industry. There is a certain degree of illegitimacy in the industry. As I have stated the figures available indicate that there is almost a £22 million illegal market for people selling illegitimate video films to all kinds of outlets which will totally disregard everything we are trying to do in this Bill. If you register all the outlets and have a list of them, it gives you an instant button to press to find out what is happening in the industry. The industry would welcome this and are prepared to pay the nominal fee required to register them. It would give the Minister the kind of information he requires. It would also give him additional powers to close down the illegitimate outlets, and there are many of them.
It would also give the Minister power to stop the distribution of pirated  material because under this Bill the censor seems to be powerless. His only function is to censor a film, not to determine the source of the film which could be an illegitimate source. It could be a pirated source but because it is only the film for which the censor has responsibilities, he can only decide on the suitability of the showing of the film and not the source of supply. That is a weakness in the Bill. I hope the Minister will consider these amendments reasonable in that we are trying to strengthen the powers in the Bill. We are not being unreasonable to the trade which is illegitimate. I would welcome a positive response from the Minister as I feel it would meet some of the worries we all have about this weakness in the Bill.
Mr. McEllistrim: I agree with the amendment and with its insertion in the Bill. All those who supply videos for sale or for hire should be licenced. Indeed, it would give us much better control over videos and those who supply videos for hire or for sale. I ask the Minister to have this insertion made in the Bill because I feel it is very desirable.
Mr. Hogan: I support what Senator Ferris said about the amount of illegitimate trade in the video industry. He outlined the figures which have been calculated by the video trade and the type of black economy in the video trade. The only way in which we can tackle a problem of this nature is the way it was tackled in the Casual Trading Act. Similarly, in other walks of life where any industry is dealing with a consumer, the only way in which you control effectively the various materials being supplied and distributed is by registration of some sort. There is no provision in the Bill for the registration of either importers, distributors or retailers. The Minister has an ideal opportunity to do so now with Senator Ferris's amendment. The video industry are prepared to provide finance to assist the situation which should help the Minister in the problem he has with finances generally. It should give the Minister the best excuse  he could get to provide effective registration of this industry. I would welcome a positive response from the Minister in that regard.
Mr. Cassidy: I agree with this amendment wholeheartedly for a few very simple reasons. It would strengthen the Minister's hand in implementing the Bill. Figures have been quoted that the industry is worth a staggering £38 million. In my estimation it is worth about £150 million. We all know that people who buy videos for £34 or £35 are copying them 20, 30 and 40 times. Some videos are so popular in your video library that you may have to wait up to two weeks to hire a film like “Crocodile Dundee”. This gives you some extent of the enormous popularity of videos.
In my Second Stage contribution I said that most major towns in the country had shops selling records. In every county in Ireland there are about four or five stores. Any small village with a population of 500 to 600 has now got a video room or video shop. That gives some indication of the extent of this enormous business. For example, in the areas that are getting only one or two channels on television, the popularity of videos is totally underestimated not alone in the Department but in the industry. No one really knows the extent of the industry because there is so much illegitimate trading going on. There is more illegitimate trading going on than legitimate. It is as simple as that. The figures that have appeared in the video report indicate that there is at least three times more illegitimate trading. If you were in the piracy business — I know this is going on — you could purchase a set of side labels and inlay cards freely for £3 a time. The enormity of the amounts of money being made is mind-boggling.
I was informed by a reliable source that from their inlay card and side labelling alone those people were making £3 million a year. On further investigation and research and with the limited amount of experience I have in this industry, I would say these people could be earning anything up to £25 million a year. If you buy a legitimate copy from a major supplier  and pay £34 or £35 for that copy, you need only have a second video recorder and then you have a video which is better than a fifth generated recorded video which will not give the shivering bar at the top. You can duplicate as many as you like so long as you are able to get the blank cassette box which can be purchased, as everyone knows nowadays, for £4 to £6 depending on the amount you want to purchase.
The problem then arises: where do you get your side labels and your inlay cards that are the same as the original? There is a manufacturing plant, not here in the 26 Counties, but within two miles of the Border. The money is going to a source that we do not want to see getting it. They can supply these side labels for £3 a time. You can get as many as you want on a frequent basis. You can have a call every week if you want it anywhere in this country. The travellers are on the road selling these items. For that very reason and to try and put some order into this industry I call on the Minister to have a serious look at the amendment and, knowing the conscientious citizen he is, he will do everything in his power to strengthen this Bill. It will also strenghten the hand of the Revenue Commissioners.
We all know there is 25 per cent VAT on videos. There is also an enormous duty of 40 per cent that can be recouped on this as well not to speak of the royalties, the MCPS and PRS that have to be paid for using a product like this. If an artist, a film company or anyone wants to duplicate the “Dallas” series or display a photograph of JR there is a 6 per cent royalty due to Lorimar. This is where the enormous money is in this industry. It is mind-boggling to say the least.
The video industry in this country would be worth a conservative figure of, say, £150 million a year. If the Government are interested in getting in money, this is the industry to go for. It is not the record industry. We hear about all the new tools and the enormous sales they have in America, or wherever, but that is no longer the case in Ireland. The growth market in Ireland is not in recording  material on wax; it is now in the video market. If you want to have a successful record you must have also a successful promotional video. You cannot have a successful record without having a successful video. This is embraced in this Bill as well. We all know the various dangers entailed in that.
The Minister should give serious consideration to this matter. As far as I can see Senator Ferris's proposed amendment has the unanimous approval of Senators on all sides of the House, particularly on the Government side. It would strengthen and put some sort of uniformity into the Bill.
The last point I would like to make is that the industry want to finance it themselves. That shows their genuine sincerity. Once the industry want to finance it themselves, everything is positive from the Exchequer point of view. The credibility of the industry at present is being taken apart, not by the people who are running their affairs legitimately, but by the people who just do not want to pay taxes, do not want to contribute in any way. It is not unusual for a man driving around the country to make £2,000 a week selling videos.
Mr. B. Ryan: I have a funny feeling that I may be in a minority of one on this but I do not agree with these amendments. I am very slow to use provisions of the law which are intended for one purpose, which is the whole area of regulating business, to enforce a moral viewpoint. There may well be a case in terms of revenue generation and in terms of copyright protection to regulate the video market. I would be the first to be lining up to insist that, whatever taxes and duties were due in this area were paid, and whatever royalties were due were paid.
Breach of copyright is a particularly serious form of crime. It is theft. It is a fashionable kind of a theft. It is, nevertheless, the theft of another person's property. It is a highly lucrative form of theft. They are all matters to be dealt with, in my view, under copyright law, under the criminal law and under business regulation law.
 This Bill is before us to regulate the content of videos to ensure that material we as a community do not believe should be available for viewing is not available. I am not convinced that the real objective of this Bill would be furthered by these regulations. As far as I am concerned the type of people who are currently prepared to supply the offensive videos the Minister has referred to, both in his Second Stage speech and quite frequently previously, and the ones that are used to exemplify what is going on, already have no sense of morality or no sense of ethics. Anybody with a sense of morality and a sense of ethics would not be in business to sell those type of products to anybody. It is equally true that anybody who is in the business, such as the company I referred to on Second Stage with the black unmarked catalogue with all the “porno for pleasure,” is in the business for good business reasons.
An enormous amount of entertainment which is valid and valuable is being provided by the video industry. If people can make an enormous amount of money out of selling either obscene videos or pirated videos I do not believe the requirement or the lack of it to be licensed will deter them in the least. I do not believe the fact that most people will be licensed will in any way deter those who will not be licensed. Neither do I believe that those who have licences and lose them will be deterred in the least. The people who are in a specific location will be affected but they can be well regulated by the provisions of this Bill as it stands.
People who have a premises in a town, a city, or rural area who do not have a supply certificate attached to every video in their stock will be covered by this Bill. It will be a simple matter, relatively speaking, for the gardaí to visit a premises and ensure that these regulations are being met. It will be quite simple for public representatives to visit places like that and make a formal complaint if this comes to their attention.
As regards the mobile operators I am not so sure that any amount of licensing  will in the least affect how they operate. People who choose to operate out of the backs of vans, whether they are selling stolen goods, or goods imported illegally, or videos will continue that operation irrespective of the fact that these things are illegal. Stolen goods are sold in large numbers; otherwise there would be nobody involved in burglary or theft. If there was not a ready market for stolen goods among relatively well off people nobody would be stealing them because there would not be any benefit in it. Similarily, in this case, if there is a regrettable market in this country for pornographic or obscene videos, we will not be able to prevent people who want those things from getting their hands on them.
What we are trying to do is to ensure that people who do not want access to these things and do not want their children to have access to them can feel that the law is operating in their favour. I do not believe any super structure of regulations in licensing will deter the people who want to make money out of dirty movies from continuing to do so. They would be simply one step further outside the law and I do not think they would be deterred in the least. The intentions to do with copyright, the intentions to do with taxation in these amendments ought to be covered in copyright law and in tax law. The moral intentions will not achieve any purpose and, therefore, I can see no purpose in inserting them into the Bill. They just complicate the Bill somehow.
There is no indication of the other Bill being brought before the House to correct the things that should be corrected with regard to the question of copyright and so on. On the other hand we are talking about trying to police something where the police can walk in and have a look and all the rest of it. We know in our own hearts and souls that the crime is so widespread, so varied, so sophisticated that the police, who have a task on their  hands at the moment, cannot give it the type of policing necessary to curtail the activities of the pirates.
The other thing that strikes me in favour of the acceptance of this amendment is that when you make a law, the idea is to enable people to do some thing and to deter people from doing things they should not do. When you have legislation before you, you must look at the title. The title of this Bill is not just “An Act to make provision for the control and regulation of the supply and importation of video recordings”, it is also for “related matters”, and “censorship.” The “related matters”, is a very pertinent point in this sense, that a related matter is the proper and detailed consideration we should put in with regard to regulation. This is a worrying thing.
What usually happens — let us be frank about it and I think the analogy is a fair one — is that we let the pirate radios go on for years and suddenly we find ourselves in a position where we have lost control of them and we now have to think about legitimising them. Maybe someone will say that the people running the illegitimate stations will not be the people who will get licences. They will apply for them under another name or under the name of a company, but it will be the same people who will have the equipment, who have been stealing the airwaves and who have been causing problems. These people have been generally speaking cheating the State because we have done nothing effective about it. The Coalition Government are as guilty as everyone else, possibly more so, because they had an opportunity to do something about it and they did not do it. The situation at present is that the Government are faced with making something legitimate. It is like a policeman saying 20 years ago, “there is no drug problem here”. Maybe there was not a drug problem then but nothing was done and we now know the consequences. I think the analogy is a fair one. I am afraid that this business will be let roll on to the point where some of the crooks and gangsters now going around knocking off this stuff will end up  as legitimate businessmen, to the detriment of the existing legitimate people who are living by the law and trying to maintain a certain standard.
Frankly, I feel the Minister could take all these points on board. As we are talking about “related matters” it is possible they could fit into this legislation without having to bother about some other legislation. The scope is there for it, the Bill can be widened. There is no point in having a Committee Stage in the House if we cannot discuss some type of amendment that might be appropriate to deter, as well as enable. If we do not take on board this amendment, an opportunity will be lost. Events may overtake us. We may not have time or something more important may happen and this matter could roll on so that eventually an opportunity to do something effective about it would be lost. I would say — particularly in view of the fact that the Government side have come out in favour of this amendment — that the Minister might well consider taking it on board.
Mr. O'Callaghan: I support the amendment also. There is obviously a need for some additional measures. I take Senator Ryan's point that it may not be the specific purpose of this legislation. However, we should avail of the opportunity to insert this amendment given that we have a relevant piece of legislation before us today and given the time constraints on the Minister in relation to producing additional legislation in relation to copyright and so on. I take the point made by Senator Ferris that there is a willingness in the industry itself.
The only other additional note I would like to attach to the suggestion is that in concert with these proposals for additional constraints the Minister would have to seriously consider providing additional personnel. I know that is virtually the unspeakable at present but it is important and I know people in the industry will subscribe to this. Many of us have met people in the industry over the past few months. They have been very balanced in their approach and in their representations to the various  groups. One thing that has come across consistently in their representations to me, at least, is that there is a distinct lack of personnel on the ground to deal with this particular problem. I am aware that in a certain part of this country — not in my own county but in another one not too far away — specific reports were made to the Garda and groups of people were identified. However, at that time, unfortunately — with the best will in the world — the Garda were not in a position to follow it up. When they eventually got around to it, the bird had flown. One of the big problems, with the magnitude of this industry is that they can fly too easily not just from street to street, but from town to town and so on. Because of the extent of the profits available to these people illegitimate operators — I am aware of some of the figures that Senator Cassidy outlined — it is a simple matter for them to move camp often.
In the short term, in concert with these new regulations we need a positive commitment to providing some range of inspectors whereby there would be a constant level of spot-checking for a specific time or until such a time as we are in a position to confront some of the cowboy operators with the kind of sizeable fines as are envisaged in this legislation. I support the amendment but I would ask the Minister to consider also providing a substantial number of additional personnel or redeploying additional personnel, at least in the short term.
Mr. Collins: The question of a licensing system for suppliers was considered when the Bill was being drafted and I referred to it in my Second Stage speech and in reply to the debate on that Stage. On balance it was decided that a licensing system was not necessary to achieve the objectives of the Bill, that is, to remove objectionable video films from the market and to prevent objectionable films from coming onto the market in the future. It was also felt that a licensing system would involve extra expenditure, extra staff, extra work for whoever would be the authority issuing licences and extra  work for the Garda. As well as that, it was felt that it would be a restriction on the trade. I should mention that the extra expenditure arising from the issue of licences would not have been borne by the State. I made it clear from the start that any extra expenditure arising under whatever control system was adopted would have to be met by the trade. I just want to repeat that again.
I listened with interest to the comments of all those who contributed to the debate on 4 November last on Second Stage on the question of licensing. Generally, they were in favour of a licensing system. Their view was that licensing would be a very good way of controlling the video film business and, accordingly, it should be provided for. Licensing of suppliers would not in any way be contrary to the objectives of the Bill. The question is: is the licensing necessary to achieve the objectives of the Bill? I consider it debatable whether it is necessary to achieve those objectives, although I agree that licensing would be an additional aid to achieving the objectives of the Bill. Perhaps it would be a sufficiently important additional aid to justify the extra work, staffing, expenditure, and any restriction on the trade it would entail. I have an open mind on this matter and I am prepared to give further consideration to the views expressed by the Members here today on this particular point. I propose to come back to that issue in a few minutes if I may.
Whatever my eventual decision on licensing is I could not accept the amendments moved by Senator Ferris on behalf of his colleagues Senators Harte and O'Shea. They are defective in substance and technically defective in a number of ways. That is no fault of the Senators. It would not be my fault if I were in the Senators' shoes and trying to do the same thing. For instance, the provision that a person shall not engage in the supply of a video recording without a supply licence would be far too wide. It would mean that a person lawfully in the possession of a video recording of an unobjectionable video work would have  to get a licence before he could give the recording to somebody as a present. That point was made earlier on. If somebody makes a video recording of a wedding reception he could not supply copies to the guests without a licence. That is how wide the amendment is and I do not think that would have been the intention. Accordingly, any provisions for licensing of suppliers would have to be far more circumscribed than is provided for in the amendments being considered as of now.
Amendment No. 8 appears to be based on a misunderstanding of the scheme of the Bill. Section 3 deals with censorship of video works, not the supply of video recordings. The person who applies to the censor for a supply certificate under section 3 would ordinarily be the producer, not the retailer. With regard to licensing, my view is that if there is to be a provision for licensing it should be as simple as possible. The scheme provided for in the Casual Trading Act, 1980, is a good example of what might be done. The question of who would give out licences would have to be decided. The Select Committee on Crime, Lawlessness and Vandalism recommended that local authorities should issue the licences. The Minister for Industry and Commerce grants casual trading licences and other possibilities are the Film Censor and the Garda. This is something that would have to be carefully considered in the event of going ahead with the licensing of suppliers.
There are other important aspects which would also have to be taken into consideration. Any system of licensing would have to be carefully framed to reduce to the minimum restrictions on trade. Accordingly, the criteria for obtaining a licence might have to be confined to the payment of a fee and the absence of convictions for offences under the Video Recordings Act. In their memorandum called Control of Videograms, the Videogram Association recommended that the licence should attach to a premises and the holder of a licence and should not extend to trading from vans or cars. I would see this as a significant restriction on trade and I would  be reluctant to build such a requirement into a licensing system. However, I am prepared to consider the arguments on all aspects of the matter.
The Videogram Association also recommended that a retailer should be bound to a code of conduct and to regualtions as to the lay-out of the shop, the marking, labelling and presentation of videograms and to standards for advertising and promoting videograms which may also cover the showing of videograms in shops. The labelling and showing of videograms are already covered in the Bill and it seems to me that some of the other requirements mentioned in the quotations I have given are far too elaborate, unnecessary and demanding of the inspection procedures. Truthfully, I could not see them being included in any licensing system.
As I said before, any additional expenditure arising from the system of the control of video films will have to be borne by the trade. Section 25 (2) of the Bill quite clearly requires that the operation of the Bill be self-financing. If a licensing system is introduced then it naturally is going to be financed by the trade. As the Irish Videogram Association have already suggested publicly a scale of fees, there should not be any difficulty about the principle involved.
As I said, I have not made a final decision as to my attitude on the licensing. I cannot accept the amendments we are now discussing for the reasons I have already given but I wish to assure Senator Ferris that I will give further thought to the licensing issue between now and Report Stage. I will inform the Senators who put down these amendments of my decision prior to Report Stage so that if they are not in agreement with that decision they will have an opportunity of doing something about it on Report Stage. In these circumstances, perhaps the Senators would agree to withdraw the amendments.
Having regard to the very thorough briefing given by the Videograms Association, particularly with regard to the extent of the value of the trade and bearing in mind how that briefing has been  reflected here today, I do not know how the Revenue Commissioners will look on the value of this trade having regard to what was said by Senator Casidy — and he spoke most authoritatively — that it was valued at £150 million. I am not speaking on behalf of the Revenue Commissioners but I am sure that they will be more than aware of what the Senator said before the day is done. If as a result of this discussion here today we have the immediate establishment of a special task force to investigate the Videogram Association it will be a nice Christmas bonus to the Exchequer.
Mr. Ferris: I would like to thank the Minister because he has more or less come part of the road with me, my colleagues, Members on both sides of the House and the trade in our wish first to strengthen his hand and, second, to try to assist in making sure that there are some restrictions in the industry on illegitimate traders. That would be one benefit arising from the amendment. I can understand Senator Brendan Ryan's concern that there is existing legislation to cover some of the areas I spoke about. However, a good legislator is one who tries to consolidate as far as possible the various Acts that would be consequential on the operation of a new Act. For that reason I wanted to bring in various sections that were already included in the Casual Trading Act, 1980.
The Minister recognised that the resources available to me are more than limited. He has the Attorney General, the parliamentary draftsman and all the legal advisers in his Department available to him and he has some reservations about the proposals I have made. May I put the matter to the Minister in another way? If Members on both sides of the House have accepted in principle these amendments and if the Minister allows them through today on Committee Stage,  I will allow him, with all the resources available to him, the opportunity on Report Stage——
Mr. Ferris: —— to come back and properly amend the new section I seek to put in. The only reason I am saying that is because the Minister has the ability in his Department to come up with the proper wording. Even though the Minister has been gracious enough to offer us consultation before he comes in with that wording, if he is unable to come in with any wording I would then be precluded because it would be repetitious to reintroduce wording that might be similar.
Mr. B. Ryan: On a point of order and because I got myself into hot water on this last week, since this is obviously an area where there are people of genuine goodwill on both sides of the House, may I suggest that Standing Order No. 91 be considered again which allows Report Stage amendments to be recommitted where the House so wishes. It is a matter for the Government side really. I do not think we have any problems on this side. Since there is a considerable amount of goodwill and everybody agrees on what they want to achieve the simplest thing to do is to agree that the amendments on this issue should be recommitted on Report Stage so that people do not feel inhibited.
Mr. Ferris: It is a very valid point. The last legislation on which I had Report Stage amendments down — and this is a fairly restricted stage in a Bill because a Member is allowed to speak only once — there was an objection from the Government side that I was abusing Report Stage by repeating some amendments which were finally conceded by the Minister. In the Senator's absence somebody else was in Senator Cassidy's place. I am not suggesting he was absent from the House but in his absence from the position he is in now.
Mr. Ferris: During last week's debate on the Bill he was not sitting in the seat he is now sitting in. One of his colleagues was sitting in it and questioned my rights on Report Stage. If it comes to it we will refer to the Standing Order so that certain sections can be recommitted and we can have a proper debate. I am doing that on the basis that the Minister will be forthcoming and generous in his response.
This will be self-funding because the industry have agreed to it. The Minister's concern about whether county council or agency staff will issue the licences will not arise because a fee will be paid. That argument will not stand up. We want a provision, whether by way of this amendment, or one that the Minister produces, which will meet the requirements all of us want in the legislation. That is basically what we are trying to do. I have regard for everything we plan to do by way of legislation, but on this Bill which, as Senator Harte said, deals with the allied subjects that will arise, it is appropriate that we should do our best to try to improve it. If I have the freedom to recommit these amendments, which would be a matter for that day's sitting and if the Minister is forthcoming, to Senators and anybody else who is interested, in his indication of his proposed amendment in this area, I will be prepared to withdraw my amendments at  this stage. Alternatively I would let them run through with the support of the House and then the Minister could change them on Report Stage. I am in hands of the Chairman, the Minister and his legal advisers.
Mr. Hogan: We are discussing amendment No. 58 with this group of amendments from Senator Ferris. Perhaps it would be helpful to the Minister if I give him some insight into a precedent that might be created on another Bill, for example, the insurance Bill. The Minister for Industry and Commerce, in order to register insurance brokers, is devising a system whereby you can apply to the Department of Industry and Commerce in order to be registered. Anyone who is not approved by the Department of Industry and Commerce cannot transact business as an insurance broker. The same analogy could apply to the video industry. Anybody who is not registered or approved by the Department of Justice in order to import, retail or distribute video material would not have the legal right to do so. The insurance industry are prepared to pay for the cost of doing that. A similar situation would arise in this case because the video industry have intimated their goodwill by meeting the cost of this registration. The Minister and his colleague, Deputy Reynolds, might have something in common in that both might be helpful to the other.
Mr. McEllistrim: I suggest to the Minister that if he is inserting in the Bill a provision that video supply licences would be necessary for anyone dealing in videos, the local authority would be a very suitable body to deal with the licences. They know their counties well. They know the towns and villages well and they would be very competent to deal with this because it would be a very localised matter.
Mr. Hogan: Many points that were raised on Second Stage in relation to the phrase “unfit for general viewing”. I am glad to see that the Minister has introduced his own amendment in order to comply with the fears expressed on the interpretation of this phrase in the section. For example, a Superman IV film could be banned in cinematic terms but could be available to children in the video industry instead. I will have great pleasure in withdrawing the amendment I have tabled in view of the Minister's goodwill in bringing forward his own amendment.
Mr. Collins: These amendments are related to cases where the official censor has issued a certificate under the Censorship of Films Act, 1923, in respect of a video film authorising its exhibition in the cinema. Under section 7 (2) of the Censorship of Films Act, 1923, the censor issues a general certificate that a picture is fit for exhibition in public unless he is of the opinion that it is unfit for exhibition because of any of the reasons specified in this subsection. Under section 7 (3) he may issue a limited certificate if he is of the opinion that the picture is not fit for general exhibition in public but is fit for exhibition, for example, in the presence  of certain classes of persons or persons over a certain age.
The expressions “general certificate” and “limited certificate” are defined in section 13 of the 1923 Act. As I mentioned on Second Stage it is the Government's intention that every video film in respect of which a film certificate, whether a general certificate or a limited certificate, has been granted under the 1923 Act should be entitled to a supply certificate under the new Act. This being so, it is inappropriate for the Bill to require the censor to declare the video work concerned to be fit for general viewing. Therefore, amendments Nos. 9 and 11 seek to delete the word “general” in section 3 (1) of the Bill and amendment No. 34 seeks to delete the word in the corresponding places in section 6 (1). Amendment No. 21 makes it clear that the official censor may not refuse to grant a supply certificate in respect of the video film if a general certificate or a limited certificate is enforced in respect of the work. Senator Ryan's amendment No. 20 has the same purpose. Amendment No. 21 reproduces more closely the wording of the 1923 Act.
Mr. B. Ryan: I am perfectly happy to withdraw my amendment. I thank the Minister for that and also for the deletion of the word “general”. It clears up a problem some people connected with the film industry were worried about from the point of view of criticism and viewing.
I have one query and I am not sure whether it arises on the amendment or the section. I will take the Minister's guidance on it. Because the film censor will be responsible for films for public showing and videos for consumption elsewhere is there not a danger that the standards he or she will now apply to films for viewing in the cinema will be inhibited by the awareness that what he or she does in that area is going to have a spill-over effect on what is viewed at home? Is there not a possibility that the film censor will now be inclined to be, to use an awful word, more censorial about what he allows in a cinema because he will be acutely aware that what he allows in a  cinema is automatically going to be allowed?
I thought a lot about this but could not come up with a satisfactory wording for it. How can we ensure that the censor will not be affected by the fact that what he decides for the cinema is going to have a spill-over effect into what is viewed in the home? I would not wish that to happen. It is parents' responsibility and we should not in any way inhibit them. Can we write that into legislation or can we do something to ensure that that does not happen?
Mr. Ferris: I welcome the amendment that has removed the ambiguous term “general viewing” from the Bill. We had discussions with the trade and the people who sell videos and they felt that if the wording was allowed to remain as it was, those who rent or sell videos over the counter would be faced with the dilemma that they would be obliged to sell to children films which would generally be considered suitable for adults only. The words “general viewing” could be misconstrued as being suitable for everybody whereas the supplier of the video might be convinced that a film would be suitable for adult members of the family only.
I think the Minister was correct in his previous interpretation and response to the question of classification. This amendment is a little more specific. A film is either fit for viewing or it is not, the phrase “fit for general viewing” has connotations that would tie the hands of suppliers in releasing videos to children in the knowledge that they were considered suitable for general viewing but not considered suitable for viewing by children. It tidies up the anomaly that existed and I welcome the fact that the Minister has been forthcoming in this. I congratulate him and Senator Hogan also for having put down the proper amendment to remove the word “general”. That is  based on the experience of the British trade.
Mr. Collins: Senator Ryan raised an exceptionally important point. We gave very serious consideration to the points raised by the Senator to see if we could incorporate into the legislation the protections he referred to. Truthfully, we were not able to do so. The British tried to do this in their legislation and the end result was the opposite to what they wanted. There is a general view here — and I noticed it coming through the first day we spoke on this Bill — that what we are doing will not in any way do away with the need for parents to exercise their role as parents in what their children view. What we are doing goes part of the way to give the protection we feel is necessary but parents have an important role to play and they must play it.
This is a technicality in relation to the wording of line 42 of section 3. It would appear that the people who would be directly affected by the section would be the ones who would cause persons to commit crimes. In addition to the people who may be indirectly involved in causing a person to commit crimes, the people who incite people to commit crimes  should be equally punishable under the Act. This amendment would incorporate the people who are indirectly involved in causing persons to commit crimes and I would ask the Minister to consider inserting in the section the words “or incite”. This would tighten up the legislation so that everybody who would be involved in committing the crime would be punishable under the legislation.
Mr. B. Ryan: I would not be in favour of this amendment. I have put down another amendment on the subsection to which this applies. I consulted with Senator Norris on this because he knows more about English than I do. I feel that the word “cause” is more precise and more restrictive than the word “incite”. The word “incite” is one that is open to a large range of interpretations, depending on the circumstances. The word “cause” is a causal relationship. There is a cause and an effect. I would prefer it. It is more precise. I am not a lawyer so I cannot go through the history of judicial interpretations of the word “incite”. I am unhappy that incitement would be regarded as an offence. I know there are places where people like myself support it and other people do not agree with it. I do not believe in incitement to hatred but the term “incitement to crime” is a sweeping, catch-all phrase and I would prefer to leave it as the word “cause”. It is more precise and more restrictive and therefore I think it should remain as it is.
Mr. Harte: Like Senator Ryan, I am not sure about the word “incite”. It may sound a little bit simplistic but if one starts getting into that territory ballad groups who get people to join hands and sing rousing tunes may be regarded as inciting young people to become rebels. It has a very wide connotation and I feel the word “cause” is adequate.
Mr. Hogan: I take the points made by Senators Ryan and Harte but that is the reason why I put in the word “or” before incite in order to cover the situations they have outlined. I am not an expert — and as Senator Ryan indicated Senator Norris  is the expert on the English language in this House — but I think that people who are directly involved in causing persons to commit crimes are equally responsible for the crimes being committed in relation to this Bill. I would not like to see anybody who is indirectly involved in the committing of the crime let off the hook. The person who is caught in the act will have accomplices, and I put in the words “or” in order to cover that eventuality.
Mr. Ferris: I think Senator Hogan was trying to be fair by using both words, but the word “inciting” is already included in the wording of section 3 (1) (a) (i) which states: “... would be likely to cause persons to commit crimes, whether by inciting or encouraging them ...”. The concern expressed by Senator Hogan is already covered in the section. I bow to my superior colleague in the English language on that but as I read it the concern expressed by Senator Hogan is already provided for in that subsection.
Mr. Norris: I would like to concur in that and to say that it is already covered, as I understand it, linguistically. The repetition of it introduces an unnecessary air of vagueness and imprecision which might be difficult to determine legally.
Mr. Collins: The effect of amendments Nos. 13 and 15 would be to cause section 3 (1) (a) (i) to read: “... would be likely to cause or incite persons to commit crimes...”. The effect of that would be to omit “encouraging them to do so or by indicating or suggesting ways of doing so or of avoiding detection”.
In my view the amendment should not be accepted because section 3 (1) (a) (i) as drafted gives a clearer idea of the purpose of the provision and would serve as a clear guide to the censor of the intention of the Oireachtas as to how he should exercise his functions in respect of video works.
I have a very specific purpose in introducing this amendment. We are not discussing amendment No. 16 with these amendments but it is related. One area of activity in this country which is currently illegal, and which is frequently a subject covered in quite legitimate, good films, is homosexual acts in private between adults. There are films which could be interpreted, as this section stands, as encouraging such activities.
My own view is that the Act which makes such activities in private illegal ought to be repealed. I would be particularly distressed if by accident we introduced further legislation which would make witchhunts against this group in our society more likely or which would make certain videos unavailable simply because they were interpreted as encouraging or inciting people to do things which the law says is a crime, although most people in our society do not believe should be a crime. Whether they believe the law should be changed is a separate matter. I am sure the majority of people do not believe that such activities should be regulated by criminal law because to so regulate them is to reflect the standards and attitudes of the Victorian era if, for no other reason, than that you cannot regulate such activities through the law.
That is one of the major reasons I introduced these two amendments. I simply want to hear whether the Minister has thought about this. I do not want to make a huge issue out of this. I know  the word “serious” raises ambiguities and ambivalences but there is a difference between stealing an apple and robbing a bank. The Swedes, for instance, have a particularly censorious attitude to matters such as driving. Films like “Chitty Chitty Bang Bang” which we in Ireland would regard as being completely harmless are quite restricted in terms of their access to children in Sweden, because they are regarded as inciting children to very bad habits in the use of the motor car. I actually think they have a point. There is a lot more to be said for encouraging good behaviour in that area where we have an appalling record than in other areas where perhaps we have a good record in terms of moral behaviour. There is a logic to it but it is a slightly censorious logic. A word like “serious” or perhaps a better chosen word would indicate that we are talking about serious crimes, crimes which involve offences against the person such as serious robbery but there is a line to be drawn in regard to suggesting that every video that encourages or incites people to commit any kind of crime is within the full spectrum of the criminal law. There was, for instance, a very good film “Summer of 42,” about two people in their middle adolescence seeking to purchase contraceptives. One could argue that it encouraged people to commit crime to the extent that it is a crime for people under 18 years of age in this country to attempt to purchase contraceptives. I do not want to get involved in details about specific issues but I think that to leave the word “crime” unqualified is far too broad and that it could be qualified by a suitable adjective. We all accept that the Minister has more expertise on his side than we have. The word “crime” could be qualified in a way that would meet the intent of the Bill without leaving things hanging too loosely in mid-air.
Mr. Norris: I support strongly what Senator Ryan has said. However, I am not sure that even this amendment would cover the situation he raises, and that I am very glad he raises, because as the Offences Against the Person and the  Labouchere amendment of 1985 are now drawn and still exist on the Statute Book, it seems to me that a judge in court could quite well decide that these were still serious crimes despite the fact, as Senator Ryan correctly has said, that public opinion has moved very considerably in advance of this. This is demonstrated as far back as 1971 by the excellent research work conducted by Fr. Micheál MacGréil and published in Prejudice and Tolerance in Ireland when he shows that in 1971 before any campaigning organisations had got underway either to incite or encourage an alteration to the law in this regard, a plurality of the Irish people acting under their own judgment had already decided that the retention of these laws in the Statute Book was a mistake. I would be a little concerned that it might technically still be a serious crime. However, that will not prevent me from strongly supporting Senator Ryan's humane view in this regard.
Mr. Collins: Section 3 (1) (a) includes, among the grounds for refusing a supply certificate for a video work, the fact that in the censor's opinion the viewing of the work would be likely to cause persons to commit crime. Amendment No. 14 would limit the ground to serious crime. I believe this amendment would serve only to introduce an unnecessary complication into the law, for the mere fact that the viewing of a video work might cause persons to commit crimes will not be enough to justify the censor in refusing his certificate. He must be of the opinion that the work is unfit for viewing for this reason. Naturally he would take into account when considering whether to refuse to grant a supply certificate the type of crime to which the work might be conducive. Minor offences such as riding a bicycle on the pavement are, therefore, irrelevant in this context. To introduce a test as to whether a crime is a serious one would be very vague unless it was supported by a definition and it might give rise to unnecessary litigation. Surely the matter can be left to the discretion of  the official censor subject to review by the appeal board. That is a safe way of dealing with it.
The same arguments would apply to amendment No. 36. We should leave it to the discretion of the film censor and there is then the right to appeal to the review board because of the complications that might arise.
This amendment is very important. There should be no exemptions to incitement to hatred against any group. The wording as it stands is that a film shall be certified for viewing unless the censor is of the opinion that the work is unfit for general viewing because the viewing of it would be likely to stir up hatred against any group of persons in the State on account of their race, nationality or religion. I do not think we should make  a distinction as between people in the State and people outside the State. For instance, we should not exempt anyone who might put on display in this country a video which might incite hatred against the native Australian community, the Aborigines, or against a group who practice an eccentric religion that we do not approve of. Stirring up hatred against people because of their nationality, race, religion or sexual orientation is wrong in itself, and whether the group who are the victims of such action happen to be in the State at a particular time or not is irrelevant to the principle. It is wrong in itself. Therefore, I appeal to the Minister to accept the amendment.
It is not so long ago since we had a particularly appalling crime in Fairview Park in Dublin in which a man was murdered. The young people involved and who were found guilty, admitted that they were out “queer-bashing”. In other words they were looking for people they decided were homosexual and they were beating them up precisely because they were homosexual. A minority in our society have a sexual orientation which is different from the majority and, incidentally, most people in our society find it distasteful. I say this, not from my own view, but because I know it is true. Nevertheless nobody should be allowed to create the sort of hostility and hatred which has resulted in an unfortunate  man, who was not homosexual as it turned out but who was a victim——
Mr. B. Ryan: I am sorry I was incorrect. The offence is all the more appalling for that. It should not happen. Our moral views or attitudes to people's sexual orientation are an entirely separate thing from the justification of incitement to hatred or to prejudice against such groups. It is as much a form of prejudice as prejudice on the grounds of religion, or race and it does not in any way preclude legitimate differences of views on homosexual activity. The censor may be of the opinion that a film is unfit for general viewing because the viewing of it would be likely to stir up hatred against any group because of their sexual orientation. In other words the amendment would meet all the conditions set by the Minister, coupled with the fact that people of a different sexual orientation are recognised as a minority who are frequently subjected to prejudiced attacks. We all agree we should not stir up hatred against a group on account of their race, religion or nationality and the Irish, in particular, have reason to appreciate that. I ask the Minister to add one more group, whose identity and needs have perhaps not been adverted to in our society until relatively recently, but who are equally entitled, irrespective of whether we agree with them or not, to be protected from deliberate incitement to hatred. Therefore I move the amendment.
Mr. Norris: I would like to support what Senator Ryan has said very strongly. I would also like to say how deeply grateful I am, that unprompted by myself, Senator Ryan had the wisdom and humanity to table this amendment as I discovered when I went along to the office to insert just such an amendment, which is the reason my name also appears on this amendment. It is a particularly important amendment and I do not believe that the Government should experience any legal difficulty in supporting it. I say that because, as the Minister  will be aware, one section of the Government's argument in the case that is currently awaiting hearing at Stras-bourg has been from the very beginning that there is no legal discrimination against citizens of this State on the basis of sexual orientation. What is legally discriminated against is sexual practice. This is a point, and I make this strongly, that the Government have continually urged, so there is no inconsistency whatever in the Government taking this amendment on board.
On the other hand, as Senator Ryan has effectively demonstrated, if this amendment is not accepted it could be taken and, indeed, in my opinion will be taken as indicating that the Government are happy to allow and perhaps to encourage and foster precisely that kind of hatred which is so damaging and so divisive in this country. I speak with some feeling on this issue because, as I remarked on Second Stage, the discussion on that occurred within a few days of the destruction by fire of the gay community's Hirschfeld Centre in Fownes Street. I cannot say whether that was an accident, but I can tell the Minister that six years ago there was a deliberate and planned bomb attack made on that centre which would have put Enniskillen in the ha'penny place. I have no doubt whatever that that was as a direct result of the inculcation into citizens in this State of attitudes of hatred.
I take a very serious view of this amendment. I feel that it should undoubtedly be carried into law. It seems to be a necessary consequence of this kind of legislation. I am not sure, however, that incitement clauses actually work. I am not sure how effective inserting into legislation sections outlawing incitement to hatred is in practice. It is clear from their inclusion in this legislation that the Government must believe they are effective. I would like to go a bit further and ask the Minister whether it is now the intention of the Government to introduce specific legislation governing incitement to hatred, because it seems to be absurd that we do it in this piecemeal fashion. We introduce a clause on incitement to  hatred into a Video Recordings Bill and just leave it at that. I am quite happy and prepared to accept it and, with Senator Ryan, I will be strongly urging that this be made effective and strengthened.
If the Minister believes it, why in God's name does he not introduce specific legislation covering this precise point? I understand that such legislation was mooted in the Dáil. In the Minister's reply I would be most grateful if he will cover this point. I will look to him to give an acknowledgement that, following the example of almost all the other States in Europe which, as a matter of course, now accept and write in the phrase “or sexual orientation” in these clauses, the Government will do the decent thing and incorporate this amendment.
Mr. Collins: Section 3 as drafted provides that it shall be a ground for refusing a supply certificate that the showing of a video work would be likely to stir up hatred against groups of persons on account of their race, nationality or their religion. The amendment being proposed by Senators Ryan and Norris seeks to add a fourth matter, sexual orientation. I believe this addition would be quite inappropriate. Race, nationality and religion are established matters in the context of international agreements and other international instruments relating in particular to human rights as matters in respect of which incitement to hostility or the like should be combated. Sexual orientation, as far as I know, has never been recognised as being in the same class as race, nationality or religion. There seems to be no more reason for singling it out as an extra subject for the purpose of the Bill than there would be for adding alcoholism, drug addiction, or even political opinion. Bearing in mind the comments made by both Senators I feel I should let them know that, as of now, a great deal of progress has been made with regard to legislation dealing with the incitement to hatred Act. I hope that, in as short a time as is possible, bearing in mind its importance, the Government's legislative proposals will be available before very long.
Mr. Norris: I would like the Minister to know that I find his response inadequate and outrageous. I say it is inadequate because he obviously speaks from some degree of ignorance in the matter when he says that this phrase is not normally included. It is included in European legislation as a matter of course. It is included in quite a lot of American legislation. It may not be a matter of treaty. This is not a treaty we are talking about. I take the gravest exception to the attitude revealed here by the Minister. I wish him to reflect further on it. I have been very careful to point out to the Minister that there is no legal conflict whatever. I stand over that and his advisers, if they are professional, must tell him this. I will take from this House this day the clear implication——
Mr. Norris: I assume they are competent and professional and I do not think this assumption reflects on them. I will take from this that the Minister is prepared to stand idly by and accept incitement to hatred against persons on the basis of their sexual orientation. There can be no other interpretation. There is and there can be no legal conflict. It is absurd for the Minister to say that this is not a regular feature of European legislation, as he and his advisers must know that it is.
Mr. Collins: I am prepared to look at what the Senator has said, having regard to what is incorporated in existing European legislation. My advisers are not aware of the existence of what the Senator is suggesting. I am prepared to look at it and I will give the matter further consideration.
Mr. Norris: I would like to express my gratitude to the Minister for that reconsideration and say that I speak with some passion, because despite the fact that I come from a professional background,  a considerable number of people with whom I am personally acquainted have been the victims of violence. I know about four or five people who have actually been murdered as a result of attitudes of hatred. As I have said, six years ago I and a couple of hundred other people could very easily have been killed in a bomb attack that was directed specifically against people on no other basis than on their sexual orientation. I take a very serious view of it. I am most grateful to the Minister for having displayed some degree of movement in this area.
Mr. Ferris: I have listened with interest to the two Senators who have moved this amendment and indeed to the response of the Minister and his assurance he will come back with a more informed view on whether this is included in European law. I was more interested in the Minister's assurance of the advancement of the specific legislation which deals with the broader subject of incitement to hatred. We must now be the only civilised country that does not have an Act which deals with incitement to hatred. There are sources this country printing material which is an incitement to hatred particularly against the Jewish population. It is extraordinary that this country does not have legislation that protects us against that. I am delighted that the Minister has given an assurance that such legislation is at an advanced stage. Certainly I and my party would welcome it. Perhaps the concerns that have been expressed by Senator Norris will be covered by that new legislation. The Minister has assured us that he will come back to this subject and we await the submissions with interest.
The object of my amendment is to ensure that only those films which are in their general tone indecent or obscene are excluded under this Bill. The wording as it stands is “unfit for general viewing because the viewing of it ... would tend, by reason of the inclusion in it of any obscene or indecent matter, to deprave or corrupt persons who might view it,” I know you can look at this in two ways; either in terms that it is so bad it is unfit for general viewing or, it is unfit for general viewing because it contains a part which would tend to deprave or corrupt persons who might view it. There are a number of things that I do not like about the present wording. I do not like the word “tend”. I think it is too generous to the censor. I think there should be a balance of probability and therefore I suggested the words “would be likely” rather than “would tend to.” I also suggested the criterion for judgment should not be that it contains any obscene or indecent matter, because any element of indecent or obscene matter should not be a criterion for banning an entire film. My suggestion is that the film would be “in greater part or its entirety indecent or obscene”, rather than one part of it. The idea that it would “deprave or corrupt persons who might view it” suggests that it could be interpreted as corrupting even a minority of people.
I think a reasonable criterion is that it “would tend to corrupt most people who view it.” If we accept the information that is being presented to us that pornography does corrupt most people who view it, the corollary is that we should only accept to be pornographic that which does tend to deprave most people. The wording in the Bill — and it may well  be very similar to the wording in the Censorship of Films Act but that really is of no concern to me — is too generous on a critical area of assessment of what is fit to be seen and what is not. The word “tend” is too general, and referring to parts or any part of any obscene or indecent matter, is too limited. I ask the Minister to consider my amendment. I have no particular hangups on the wording of my amendment but the wording ought to be more tightly written. The fundamental flaw that I see is that it ought to be the general content of a film rather than a specific incident which would be the criterion for determining whether it is sufficiently obscene or indecent as to require a supply certificate to be refused.
Mr. Collins: Amendment No. 19 would replace section 3 (1) (a) (iii) relating to video works containing obscene or indecent matters with a new subparagraph with two differences: the first is that the video work would have to be “in greater part or in its entirety indecent or obscene”; the second change is that whereas the Bill applies if the video work would tend to deprave or corrupt persons who might view it, the amendment would require that it would be likely to deprave or corrupt most persons who would view it. The amendment introduces quite unnecessary complications. To require that the work should be indecent or obscene in greater part or in its entirety would be very anomalous. How would the censor estimate the fractions? Why should the fact that the work is only 45 per cent obscene debar the censor from refusing a supply certificate if that 45 per cent is enough to deprave or corrupt? In any event he could always suggest that cuts should be made in the work. Also as to the proposed requirement that the video work “would be likely”“to deprave or corrupt most persons,” how could the censor estimate the proportions of the different kinds of viewers? Even if he could do so, should he have to issue a supply certificate if he estimated that only 45 per cent of viewers would be likely to be depraved or corrupted? The truth is that the Bill as introduced would give  the censor a reasonable discretion in this respect. Of course the Senator will accept that an appeal against the censor's decision in matters such as this lies to the appeal board.
Mr. B. Ryan: The Minister knows that the problem with this Bill is a problem of drawing lines where lines cannot be drawn. I could just as easily ask about the present wording, and I think with considerably greater validity, that if you are going to talk about something by reason of the inclusion in it of any obscene or indecent matter, are we talking about one second, ten seconds, half a minute or one minute? When does a particular moment become obscene? In a video film where you can actually stop it, slow it down and send it backwards, what constitutes obscene matter? What detail, what time, what explicitness constitutes it?
My view about what is a pornographic film has as much to do with the intent of the maker as it has to do with anything else. My view is that those who set out to make pornographic films do not make pornographic films with five seconds, or indeed five minutes, of what we would regard as obscenity or indecency in it. The words “obscenity” and “indecency” are, of course, highly culture qualified and also time qualified in that what was obscene and indecent 50 years ago would be taken for granted and would hardly be noticed now. The criterion that is best used is the intent of the maker. Unfortunately it is impossible to measure and, therefore, what one has to assume is that those who set out to make pornographic films with intent to deprave, or corrupt, or to sell them on the basis of the fact that they are indecent or obscene, are not going to produce a 90 minute movie which contains only ten minutes of what they know is selling the movie. The other 80 minutes are not going to be filled in with high flown culture. Those who make the vast majority of those films we wish to exclude under this legislation are going to make films which are virtually in their entirety pornographic. Only for the  length of time it will take people to take their clothes off will the film not be pornographic. That is the intent of the people who make these films.
Therefore, it is perfectly reasonable to suggest that we should be talking about films which are in their entirety or their greater part indecent or obscene. Films which have particular episodes in them which some people might regard as so offensive as to be indecent or obscene are not necessarily pornographic and should not be adjudicated to be pornographic. They are not the sort of films we are talking about. The films we are talking about are the sort of films which are on show in the sex shops in Britain and in the X cinemas in Britain and which are an unmitigated succession of various forms of sexual and other activity with very little interruption. How do I know? I saw them when I was ten or 20 years younger like most Members of this House who ever worked outside the country at one stage or another. It was part of the experience of growing up that most of us went through. The Minister is not that much older than I.
Mr. B. Ryan: Is he? I am sorry, perhaps the Minister is younger than I; I am not sure. I was going on the fact that he was in UCD some years ahead of me and therefore I presumed he was older than I. I had a slight time lapse on my way to UCD so we could actually end up being very similar in age. That is not the issue. The issue is that I think that, in drawing the balance of what is to be excluded, the balance should not be drawn on the basis of individual episodes in an otherwise acceptable film. I know that the Minister has talked about excerpts from obscene films contained in otherwise harmless material. That is covered by a previous section. I do not think that to avoid making mistakes we should throw in wording which could reflect on legitimate film-makers making legitimate films which some of us or most of us might regard as indecent or obscene but which  are made with a proper intent. The people who make dirty movies make 100 per cent dirty movies. They do not——
Mr. Collins: Not necessarily. I speak from my own experience of having had to look at them. There is one particular video the first 90 per cent of which could be and should be regarded as unsavoury but certainly the last ten minutes of it was so violent that that, in itself, necessitated the banning of it. In actual fact, if the Senator wants to watch it it is in the Department and he could watch it for ten minutes in the afternoon.
Mr. B. Ryan: The Minister is talking about violence which is covered quite specifically in the next paragraph of section 3 and, as the Minister said on Second Stage, it makes no qualifications. Films which depict gross acts of violence or cruelty towards humans and animals are a category apart. I accept that. We are talking here more about indecency and obscenity in the sexual and related areas. I do not think it should be acceptable that, because there are episodes of sexual activity in a film which many of us might find indecent or obscene, a film which is otherwise all right ought to be excluded. I am not going to make an enormous point about this because, in so far as our film censorship is operating at present, it is operating in a reasonably enlightened fashion and therefore the issue does not arise.
Mr. B. Ryan: Senator Norris and I, not for the first time or the last time, do not agree. The point nevertheless is that I am reasonably satisfied and most people I  know are reasonably satisfied with the film censorship as it operates now. I am aware of exceptions and of films which people disagree about. Nevertheless, the wording as it stands is far too heavily weighted on the side of censorship and not properly balanced between the interests of legitimate film-makers, the legitimate interest of people who want to watch films and the interest of the community in protecting itself from excessive amounts of indecency and obscenity.
I do not think the Minister's arguments about percentages is a real response to the issue that I have raised and I would like to talk about the issue of how you draw a balancing line between the community's interest and the rights of people to see what they wish and the rights of people to make such films as they wish within reasonable limits of what the community regards as acceptable. I do not think that wording goes in the right direction.
Mr. Norris: I would like to support the general drift of what Senator Ryan has said but I would have to reiterate the fact that I am not convinced that the function of the film censor is currently operating in a totally satisfactory fashion. I instanced in the Second Stage debate a film called “Working Girls” which is currently banned which contains episodes of heterosexual intercourse which some people might find unpleasant but they are an integral part of a seriously disturbing and challenging work of art. The intention of that film is to disturb and challenge our values. It is a highly moral film but, because the images disturb, it has been banned. I took the trouble, in fact, to acquire a video copy of this film because I wished to see it in preparation for this debate. If this Bill operates in the way Senator Ryan appears to suspect that it might, my right to view just such a film would automatically be closed off from me.
The Minister, with his customary astuteness, has isolated a particular difficulty in this area when, commenting on Senator Ryan's contribution, he asked  how can he estimate what percentage is involved. Absolutely. How do you estimate these things? How do you estimate a general tendency towards obscenity or indecency? It is precisely the same difficulty. These are subjects which are resistant to quantification and I am particularly concerned on this matter of indecency or obscenity, not because I have seen large numbers of these films. It is remarkable that both the Minister and Senator Ryan who have consumed apparently both in their youth and now large quantities of this material——
Mr. Norris: It is a relevant point which I am making with some degree of humour but I am making it simply because, in trying to discover what viewing material should be closed off from the public, you can apply a number of tests. An obvious one is the nebulous one, and I am afraid it is nebulous, suggested by Senator Ryan and relating to the intention of the film maker. How can one possibly discover with ease what the intention in the mind of a film maker is? Another, and also nebulous one, is the impact on the viewer. Even in terms of the impact on the viewer it is quite difficult to determine and again you are into this business of percentages. I will simply reiterate what I said earlier — and the principal reason we have certain sections of this Bill is because there is a very extensive, effective, very professional and very well funded lobby from inside the industry which has nothing to do with morality. but which has a lot to do with cash.
Mr. Collins: I accept that a pornographic film will not corrupt perhaps 80 per cent of the people looking at it. If, however, it depraves 20 per cent of the people who look at it then I would say it should be banned. That is where we differ. I believe that apart from the 20 per cent who are corrupted we have to bear in mind that some of that 20 per cent may go out and commit crimes against women, or other crimes, as a result of that. There is an obligation on us to deal with that problem. I hold that conviction very strongly.
Mr. B. Ryan: I do not dispute the point the Minister is making, that there are films which have resulted in people committing crimes against women. Many of the most radical feminists I know have shifted over the last ten years from a position of being utterly opposed to censorship to a position where they take a very different view precisely because the evidence that has been presented to them has pushed them in that direction. Men in particular have reason to listen very sensitively to that because it is much easier in some ways for men to talk about liberalism in the area of censorship than for women who often see themselves as victims both within the pornography and also as consequence of it. Nevertheless, I am not convinced that it is one particular category of pornography that incites people to commit crimes. I think there are films that the Minister and I would regard it as ludicrous to ban which some of the people who do get involved in sex related crimes would find so stimulating and so upsetting that they would be incited to crime.
Therefore, I do not think that incitement to crime is a definition of pornography. If we were to define pornography in terms of that which would incite disturbed people to commit sex related crimes an enormous amount of what is currently on view in the cinemas and what is currently acceptable in our society would be banned. I do not know that anybody has asked what is the index of pornography beyond which there is a sudden explosion of sexual crime. What  we know is that an enormous amount of gross pornography that is available does encourage this. I do not know that you can pick a percentage of the population. I would far prefer if the Minister would show a willingness to think again about this particular phrase. I do not want to push it to a vote for a number of reasons. I do not think that we as a society should run away from attempting to adjust a reasonable definition of what is acceptable simply by arguing about percentages. I think you have to talk in terms of some more generalisations.
I do not think the word “tend” is sufficiently protective of the interests of those of us who perhaps believe that films should be widely available, that there should be a wide tolerance for a wide range of standards. I do not think the reference to the phrase “of any matter” is sufficiently generous at all. I do not think the idea, “if it corrupts any person” is sufficient and I would therefore suggest that the Minister might think about a wording which tightens up what I think to be an excessively loose paragraph.
Mr. Norris: I share some of the Minister's concerns but I am considering also the practicality. Perhaps the figures he gave came off the top of his head but I was a little worried when he said that a film or a video that might be quite acceptable to 80 per cent of the public but which might have a tendency to corrupt, deprave or put particular thoughts in the minds of 20 per cent, should be banned. Perhaps that is an area for licensing. In the case of a video that is acceptable but which perhaps raises challenging issues or displays photographic reproduction of human beings engaged in sexual intercourse, I do not see that because 20 per cent of the public might be alienated or in some way disturbed by it, that it should be totally excluded. Such grounds would hardly be sufficient for such exclusion.
Mr. Collins: I can understand the point raised by Senator Norris and that is why I believe that what we are doing in this Bill is right and proper. It is a difficult area. I have no doubt that Senator Ryan  holds his viewpoint as strongly as I hold mine. I respect his right to do that. I appreciate it. I am satisfied from all the advice available to me that what we are doing in the Bill is right. Otherwise I would not be here with that particular issue covered as it is in the Bill. The film censor has a reasonable discretion in matters such as this and it was thought that perhaps having regard to that discretion he is in the best position to make a decision. I have no doubt that we could all tell the film censor how best to do his job. I meet many people every day who tell me how best I can do my job. At times I wish to God they would. I believe it is best to leave it with the censor and then if there is an appeal let the appeal be heard by the appeals board. I am satisfied that is the best way.
Mr. B. Ryan: I will withdraw the amendment for the simple reason that I want to have a couple of other amendments of mine discussed. I do not want to accuse anybody of bad faith but my understanding was the the discussion today was from 10.30 a.m. until 2 p.m. Domestic circumstances necessitate that I be gone out of here at 2 p.m. and if I call a vote now another amendment that I want to have discussed will not be reached. I can reintroduce this amendment on Report Stage and perhaps discuss it again. That is the best I can do.
Mr. W. Ryan: As Senator Ryan has mentioned I thought the Minister could not be here later on in the day and therefore I was trying to drag him on as long as possible up to 2 p.m. Because the Minister is prepared to come back after lunch I intended that we adjourn at 1 p.m. but in order to facilitate Senator Brendan Ryan with that amendment we continued on longer. I suggest we now adjourn until 2 p.m.
“(2) The Official Censor shall not refuse to grant a supply certificate in respect of a video work in respect of which a general certificate or a limited certificate under the Censorship of Films Acts, 1923 to 1970, is in force.”.
It is not clear from the wording that the censor must view a film before he refuses a supply certificate. It says — as section 3 stands — that the censor shall grant a  supply certificate to the person, unless he is of the opinion that the work is unfit for general viewing because of a number of things. It does not specifically state that the censor must view a video film before a decision is taken to refuse a supply certificate. I think it is a simple but fundamental principle that there should be no question of films being banned by repute or by the lurid nature of the cover or something like that. We should write into the legislation that the censor must view any film before a decision is taken to refuse a supply certificate.
Mr. Collins: I believe this amendment would introduce a completely unnecessary complication and might involve much waste of time in the Official Censor's office. If the censor sees that a large amount of the earlier part of a video work is grossly obscene or indecent, he might well be satisfied that the work would be bound to have the effect of depraving or corrupting viewers, so why should he have to watch the rest of the work? I believe it can be left to the censor and the appeal board to judge how much of a video work he or they must view. Let them decide how much of it they should view in order to judge whether the work bears the character in question. I accept totally what the Senator says that one cannot make a decision on the repute of a particular work, nor indeed on the lurid nature of the cover. Of course not. But I think we should allow the censor here to make up his mind, as I know he would do, on having viewed as much of the particular film as he feels it is necessary for him to view and then let him make his decision.
I am not a film censor, nor indeed would I ever want to be one, but I should say to Senator Ryan I tried to look at one of the type of films we are talking about and there is not any way for any money that anybody could get me to sit down and look at that full picture. It was so obscene and so degarding, in particular to women, that ten seconds was practically enough for me. Do not tie me to that, Senator Norris, please, but let me truthfully say that five minutes of it would be  more than enough for any normal person to say, “Out with that filth, get rid of it”.
Mr. B. Ryan: I do not know — that is the lousy job a censor has to do. We give him the awful job of viewing all the stuff that we do not want ourselves or our children to have to look at. I am not sure that anybody can make a decision like that without seeing it in its entirety. I know it is a rough job. I know it is an awful job, but given the Minister's attachment to the present phrasing which is:
I actually assumed that it was intended and implied in this Bill that the censor would have to see any film in its entirety before he would ban it. Similarly, I assumed that The Appeals Board would have to view any film or video before they banned it. I would find it ludicrous, for instance, that the Censorship of Publications people would consider banning books before they had read them or looked at them and inspected them in their entirety. The idea that somebody would send them underlined passages from a long novel and they would read those and decide whether the book should be banned or not would be entirely ludicrous. I think there is a fundamental principle here. If we are sacrificing our liberty in the interests of something we regard as more fundamental — which is the protection of certain values that we hold dear — then the person to whom we give that job has an obligation to see it in its entirety and to judge it in its entirety. Of course, I accept that there are films like the ones the Minister has described which are so appalling that it is an awful job, but the job of film censor is an awful job. Of course it is.
Mr. Norris: I would just like to support Senator Ryan in this. I agree it is a terrible  infliction on a censor. There are also perhaps practical considerations in terms of time and personnel to view all these things. I do not know whether a single censor is capable of viewing the enormous amount of material that is produced. However, as I understand the Bill — and the Minister will correct me I am sure if I am wrong in this — as it is currently drafted there appears to be no legal requirement on the censor to view at all. It does not come down to the business that he has got to view the entire thing. The point that really worries me is the looseness of the drafting, simply because a censor under this legislation could ban without having seen one second of a film, as I understand it. Perhaps I am wrong and perhaps the Minister would comment on this, but, as I understand it, there is no requirement on the censor to view at all. Senator Ryan is perfectly correct; there have been notorious instances of the banning of various works of literature unread.
Mr. Collins: May I suggest to Senator Norris that if he looks at section 6 he will not have any worries or concern because section 6 clearly says that: “If the Official Censor, having examined a video ...” That surely will cater for the concern of Senator Norris.
Mr. B. Ryan: I am sorry but if the Minister put in there “having viewed” a video, I would not require an amendment. “Viewed” is used throughout this Bill to describe people looking at a video recording being played and “having examined” is a phrase there which is obviously not meant to mean the same thing as “having viewed” a video recording. It appears to me that “having examined” suggests that he just has a look at the cover and he just comes to a conclusion. I find it entirely unacceptable that a censor could refuse a supply certificate because he did not like the look of it. I am not suggesting the present censor would dream of that but I find it entirely unacceptable that he would refuse it.
Mr. Norris: The Minister has been very  reasonable in taking on board a number of amendments that were brought to him throughout this rather long morning. If I may further test his reasonableness and the reasonableness of my colleague and friend Senator Ryan, I suggest that perhaps the simple replacement of the word “examined” by the word “viewed” might go a long way towards satisfying Senator Ryan and he might then withdraw the requirement on the unfortunate censor to view the entire production which might be unreasonable. I think it is not unreasonable to insert the word “viewed” because “examined” is vague and Senator Ryan is, in my opinion, quite correct legally that you can examine a thing simply by looking at the cover.
(4) It shall be an offence for a person to apply for a supply certificate or a limited supply certificate unless such person has been authorised to apply by the owner of the copyright in the said video work.
The purpose of this is to highlight the importance of the copyright situation which we referred to on Second Stage which would be normally the content of another Department. I understand legislation is pending on that section. We should regulate where people would be worried about the copyright situation and the supply of materials to sources that we would not normally want to get into the hands of and in order to ensure that the film censor would not be put in the  enbarrassing position of having to grant a licence or a supply certificate to material which would go contrary to what the Department of Justice or the film censor would want to get out of this legislation.
You could have a situation arising where the film censor would give a supply certificate to pirated material. Some safeguards will have to be included in this Bill through the Revenue Commissioners or through the owner of the copyright to make sure that the suppliers of that material are bona fide and that the element of piracy, which is rampant at the moment and which Senator Cassidy referred to earlier, whereby subversive organisations are getting their hands on the financial returns of this activity which the Minister, as Minister for Justice, would find very distasteful and very disturbing, is dealt with. In order to have the safeguards built into the legislation the owner of the copyright would have to indicate some sort of authorisation to the suppliers of that material, the people who would be importing it or distributing it in this country. I put this amendment down to get the Minister's views on how he intends to safeguard the situation and whereby piracy is eliminated once and for all.
Mr. Collins: I oppose this amendment on the grounds that it is unnecessary to make it an offence to apply for a supply certificate for a video work of which somebody else owns the copyright, an offence, moreover, for which no provision is proposed in the amendment as to mode of trial or penalty. If the official censor learned that the applicant was acting in breach of somebody else's copyright he could simply refuse at that stage to consider the application just as if he learned that the applicant was acting otherwise without authority or that the video recording containing the work had been stolen. This is on the general principle that a statute must not be made the instrument of fraud. A similar situation might arise over a cinema film. In either case the applicant would scarcely venture to challenge the censor's refusal by proceedings in the High Court unless there  was a genuine issue over the ownership of the copyright.
Mr. Hogan: I take what the Minister has said literally. I would not be au fait with the precise legal terms which he has outlined to me but I wanted to highlight the situation about the copyright and the fact that there is no provision in that regard in this Bill. The Minister indicated he could not put such a provision in the Bill. I look forward to a future occasion when the Minister for Industry and Commerce would deal with the question of copyright. Perhaps the Minister present would convey to the Minister our concern in relation to the supply of video material and to its inappropriate supply by way of piracy.
Mr. Collins: I would like to say to the Senator that I have already conveyed a number of comments made during the earlier part of the debate on this Bill to the Minister for Industry and Commerce bearing in mind the responsibility he has in relation to copyright. The Minister will be made fully aware and is specifically interested in knowing what the views are in relation to this matter because of his obligation to do something in that area very shortly.
Amendments Nos. 28 and 29 not moved.
Section 4 agreed to.
Amendments Nos. 30 to 32, inclusive, not moved.
Section 5 agreed to.
Amendment No. 33 not moved.
 Government amendment No. 34:
In page 7, subsection (1), line 33, to delete “general”.
Amendment agreed to.
Amendments Nos. 35 to 37, inclusive, not moved.
Mr. Ferris: I move amendment No. 38:
In page 7, subsection (1) (a) (ii), line 40, to delete “in the State”.
Amendment agreed to.
Amendments Nos. 39 to 43, inclusive, not moved.
Section 6, as amended, agreed to.
Amendment Nos. 44 and 45 not moved.
Section 7 agreed to.
Section 8 agreed to.
Amendments Nos. 46 to 51, inclusive, not moved.
Mr. Ferris: I move amendment No. 52:
In page 9, after line 45, to insert a new subsection as follows:
“(6) For the purposes of this Act, the Minister shall appoint an additional member to the Appeal Board who shall be a bona fide representative for the video recording supply trade.”
The reason for moving this amendment is that reference has been made in three of the sections to the film censor and indeed the appeals board. We are concerned that as the appeals board will now be dealing with possible appeals from the video industry and from our experiences in working with this Bill, it is appropriate that the Minister should increase the  number of members of the appeals board which would represent the video supply trade.
I am suggesting that it should be a bona fide representative of the video recording supply trade who would give a balance on the censorship appeals board which may not necessarily have been there at the time the Minister constituted the board because the necessity for it was not present, but now that videos will be submitted to them, which would be the subjects of appeals, it is not unreasonable to expect that the industry should be represented on such an appeals board. I hope the Minister will concede this. He knows I am trying to give a balance to make sure that the professionals in the video industry could sit on the appeals board and be able to give a valued opinion or a judgment on what might come before them.
Mr. McEllistrim: I oppose this amendment as I feel it is not necessary to have a member of the video recording supply trade represented on the censorship board. First of all, I believe that they would be probably trying to influence the board to get some video films through which might not be suitable. I feel anyway that we should not have a person from the video recording trade on this censorship board.
Mr. Hogan: It is regrettable that Senator McEllistrim feels that anyone from the video industry would try to influence the overall decision of the board. He would be probably more in line by stating that they would be prepared to put forward their point of view in relation to an appeal that would be coming before the board no more or less than the Senator would. The amendment being put forward by Senator Ferris suggests that the video industry would have an input and a point of view that should be represented on any particular board that would be making a final decision on whether films should be banned or not. In any particular Department of State if there are representatives of the  trade on a particular board I do not think the Minister has ever felt inhibited or that the film censor in this case would feel inhibited by the fact that they would have undue pressure being exerted by a member of the video trade in this instance. I appeal to the Minister to accommodate somebody from the video trade. One person would be sufficient in order to have that view expressed at that particular level.
Mr. Norris: I wonder, with all deference to the responsible behaviour of members of the video trade, if there is not a question of some degree of conflict of interest here and that perhaps it would be better, if other people are being appointed, to have somebody from the creative artistic side of the film profession involved. It is a different thing, it is not a commercial vested interest and I feel, with the greatest respect to this particular lobby, that there is a clear conflict of interest which would be regrettable.
Mr. Collins: I am very firmly of the view that it would be quite inappropriate to include in the Act a particular requirement as to the composition of the censorship of films appeal board when there is no special provision in the Censorship of Films Act, 1923, at present as to how the board should be composed in respect of film censorship. At present the board should be composed of persons considered to be suitable by reason of their qualifications generally. It would be most curious to single out the video recording supply trade for representation on the board. In any event a member of the board is not appointed to represent any particular interest as the amendment seems to suggest the additional members should do for the video recording supply trade. I do not accept the arguments made and I am afraid I have no option whatsoever but to oppose the amendment.
Mr. Ferris: I listened with interest to what the Minister and my friend and colleague, Senator McEllistrim, have said. There was never any intention to suggest  that by appointing an additional member to the appeals board from the industry that they would in any way or at any time use their influence to change what would be a legitimate decision of the board. Because this is a whole new area, I was of the opinion and my colleagues, Senators Harte and O'Shea, were of the opinion that it would be appropriate that people who would have a specialised but not a vested interest in the industry which could be of benefit to the appeals board as a whole should at least be considered for membership of that board.
I would certainly take on board my colleague Senator Norris's comment that if the Minister feels that any other person from other parts of the artistic world should be represented, certainly any broadening of the view of the representatives of the appeals boards would be welcome, because we are now delving into a new area, video censorship, which the Minister has admitted is fundamentally different from film censorship, although the same person will be dealing with the two areas. You could have — and we will deal with amendments from Senator Ryan later on — a video copy of a film which had already been censored or part of it censored by the censorship board and cut before it was distributed because there is a system of classification in the film industry. That may not now necessarily apply to videos and you could have a whole video presented to the censorship board for an appeal on the basis that the film of it was for and is in public use. Is it intended that the censor will now start cutting videos?
I want to be clear on this. I thought it was important to have somebody professional there to advise on the appeals board. Certainly one member could not change the decision and probably would be the very first person to suggest that a particular video should not be for public circulation. In fairness to the trade, from all the representations that have been made to me and from the submissions made to me the legitimate trade in Ireland are very responsible in this area. It is in their own interests — and I think  they have convinced all of us — to ensure that there are certain standards in this area. Certainly adding one member to the board would not interfere with the balance and would not create a vested interest.
However, with deference to the people who have been in touch with me and the representations they have made, I do not want to press this in case I could be misconstrued as looking for a vested interest on the appeals board. That would be very far from my intention and from theirs. In case I might be misconstrued I do not want to push it in that way. I feel the Minister should look at the new duties of the appeals board and take on board the new dimension that will be given to them now by way of this Bill. It is appropriate that they be as competent as possible in the performance of their duty.
Mr. Collins: I believe on reflection most Members would agree with me that it would be undesirable to have representatives on the board for the purpose of protecting their interests or being seen to represent their interests. I am sure there is a general acceptance of that. I am equally sure that there will be full acceptance of the fact that people on that board would be on it because of their objective capacity and for no other reason. That is why I am proceeding as I am and that is why the composition of the board at present is as it is, primarily for their objective capacity. I have every reason to be satisfied with the composition of the board as it is, I have no doubt they will do the work that they have to do. I would hate to think that we would have different interests on different boards representing specialised interests and, in this area, specialised and powerful lobbying interests. I do not think it would be good enough. I do not think I would accept that. In fact I am certain I would not accept it.
Mr. Ferris: I would not for a second suggest that there should be anybody on it who would be lobbying. All politicians, the Minister included, would agree that at times lobbying bodies are quite difficult  to come to grips with. It was certainly not intended that they would be on it for that purpose. Could the Minister say if it is his intention to extend the membership of the appeals board in line with this Bill?
Mr. Collins: I should say in reply to Senator Ferris that there are already nine members on the board. If a nine member board are not capable of doing the job of work entrusted to them, which I believe they are and more than adequately capable of doing it, I cannot see how a ten member board will do a better job than nine. I am sure the case could be made that it is too big as it is.
Mr. Ferris: Will the Minister cut back that one too?
Mr. Collins: For Senator Hogan's benefit I should say that there is no cost factor.
Amendment, by leave, withdrawn.
Question proposed: “That section 9 stand part of the Bill.”
Mr. Hogan: I am always concerned that the films which are released by the censor in Ireland are released on the same day, if not earlier, than the same films in Britain. If we have not got adequate staff in the film censor's office the staff should be increased. At the moment he is supposed to look at three films a week.
Mr. Collins: There is a delay in the operation in the film censor's office at present.
Mr. Hogan: I would not like to see a delay in so far as the material here will be out at a later release date than material in the UK because it leads to increasing the amount of pirated material coming on the Irish market. I would like to ensure that there will be no delay in the releases and to make sure as far as possible that the release dates are similar if not earlier in this country in order to protect us from the pirated material that could come in from the UK.
Mr. Collins: I would like to assure the Senator that there will be extra staff appointed to deal with the volume of work. On the issue of release dates this can be discussed between the censor and the trade.
Question put and agreed to.
Acting Chairman (Mr. Mullooly): Amendments Nos. 53 and 54 are related and may be discussed together.
Government amendment No. 53:
In page 10, subsection (1), lines 1 and 2, to delete“, whether or not for reward or by way of business,”.
Mr. Collins: These amendments can be considered together as they are both drafting amendments. Amendment No. 53 is to correct a drafting defect. Section 10 (1) in its present form penalises a person who, whether or not for reward or by way of business, exhibits an uncertified or prohibited video work in certain circumstances. Paragraph (ii) applies to exhibiting the work in a private dwelling for reward. This is a contradiction. It arose as a result of changes made during the preparation of the Bill. Amendment No. 53 gets rid of the contradiction by removing the words quoted in the amendment. Amendment No. 54 removes the words quoted from subsection (1) (iii) because they are unnecessary. It is purely technical and drafting.
Amendment agreed to.
Government amendment No. 54:
In page 10, subsection (1) (iii), line 10, to delete “(whether or not for reward)”.
Amendment agreed to.
Section 10, as amended, agreed to.
 SECTION 11.
Amendment No. 55 not moved.
Question proposed: “That section 11 stand part of the Bill.”
Mr. Hogan: The Minister would want to take cognisance of the remarks made today by Senator Cassidy in relation to the abuse of the labelling and inlay system which can lead to a tremendous amount of finance going into the wrong hands. Technology has become so sophisticated and equipment so sophisticated that the various pirating and copying of material that can take place is not safeguarded by existing legislation. I hope this Bill will go all the way to protect the type of labelling and inlay system we have operating and ensure that the enormous illegitimate trade will be brought to heel as quickly as possible. Backup facilities are needed on either side of the Border. This is something the Minister could take up in the context of his Anglo-Irish secretariat. In Armagh, as Senator Cassidy pointed out, great duplication of material was taking place with people making an enormous amount of money out of this racket. The Minister should be in a position to alert the authorities on that side of the Border and root out the illegitimate trade that is taking up to 25 per cent of the market. That is depriving the legitimate video trade of much needed revenue and it is depriving the Revenue Commissioners of much needed finance.
Mr. Collins: I would like to thank the Senator and also Senator Cassidy for their comments in this area. I am satisfied that our Bill is very carefully drafted to ensure that the official labels are available only from the film censor. Every effort will be made to ensure that all safeguards will be taken to deal with the type of problem the Senator has mentioned to prevent forgery and to prevent those who are engaged in similar type activities in other places from gaining a foothold here.
Mr. Hogan: The counterfeiting of labels should be treated as harshly as other punishable counterfeit crimes.
Mr. Collins: I am sure the Senator will agree that is more than adequately covered in the Bill. It is something we are conscious of and it is necessary if the Bill is to be as effective as we want it to be.
Question put and agreed to.
Sections 12 to 15, inclusive, agreed to.
Mr. Norris: I move amendment No. 56:
In page 15, line 10, after “recording”, to insert “for which a supply certificate is not in force.”.
I would like to move this amendment on behalf of Senator Ryan. It is an important amendment and one which I imagine the Minister will have no great difficulty in accepting. Section 16 awards to Customs and Excise officers quite extraordinary powers that are unnecessary. I wish in no way to reflect on the responsible performance of the duties of officers of Customs and Excise but the capacity to detain on importation into the State any video recording which a Customs and Excise officer believes ought to be examined by the official censor under this Act is a very wide power and is capable of arbitrary and capricious administration. In those rare instances where there is arbitrary and capricious behaviour it opens the gate to this.
The amendment inserts after the word “recording”“for which a supply certificate is not in force”. There is no reason for an officer of the Customs and Excise to have the power to detain a video or delay its importation and enjoyment when such a certificate is in force. I am sure the Minister will agree with me that there is irrefutable logic behind this amendment.
Mr. Ferris: I also had discussions with Senator Ryan before lunchtime and he expressed the views which Senator Norris explained to the House. The Minister  might explain in his reply when a limited or a supply certificate will be issued? Will it be issued to the importer of the product before it reaches our shore? If so, then the amendment is legitimate. I am not quite sure whether it comes into play, after it is imported and before it is submitted to our official censor? I am anxious to ensure that nothing slips through the net, so to speak, and there is not any undue influence by the Customs and Excise officer in an area which is the responsibility of the film censor. I do not want the Customs and Excise officers to take on themselves any new duties. They have enough already and we gave them some recently in connection with the importation of illicit drugs. Depending on the Minister's response, I will decide whether I can fully support Senator Brendan Ryan's amendment which is before us for discussion.
Mr. Collins: Section 16, as drafted, empowers an officer of Customs and Excise to detain a video recording being imported into the State if, in his opinion, it ought to be examined by the official censor and to refer it to him for the purpose of such examination. The purpose, of course, is to enable the censor to consider whether he should make a prohibition order in respect of the video work concerned. The amendment provides that the customs official should not detain, for this purpose, any video recording for which a supply certificate is in force. The amendment would not serve any useful purpose but would have a disadvantage. If the customs official was satisfied that the video recording contained only a certificated video work or certificated video works, he would naturally not refer the recording to the censor in any event. On the other hand, he may have cause to suspect that the title of the work as printed on the recording is false and that the video work is not the same as a work which he knows to be a certificated work. Since he cannot hold up the passenger or other importer while he watches the video work to see if it is the same as the certificated one, it is  better that he should be able to detain the recording and refer it as provided.
Mr. Norris: Is that not a problem of labelling, fraud and so on? What worries me and what also worries Senator Ryan is that we are now extending to an officer of the Customs and Excise some of the functions of censorship and clearly in certain cases theoretically it could be open to abuse and could be used for harassment of persons.
Mr. Collins: Perhaps the Senator would accept that the question of labelling only comes into being when the actual video is in.
Mr. Norris: I accept that point but can I explain the worry that I and Senator Ryan have? That is that we are asking an officer of the Customs and Excise to exercise, at least in some degree, powers which he many not have of discrimination in terms of the content of a video.
Mr. Collins: In reply to Senator Norris, the customs officer already has some powers and he has a discretion to exercise those powers. We are giving him room to manoeuvre to continue the exercise of these powers in this particular area. I feel this is necessary having regard to all the comments we had during the course of this Bill on the question of piracy.
Mr. Ferris: I agree.
Mr. Norris: I accept what the Minister says but I also assume that if it can be demonstrated that there is abuse of this section the Minister will be happy to give an undertaking that the section, if abused, will be reviewed?
Mr. Collins: I certainly will be very happy to give that undertaking.
Amendment, by leave, withdrawn.
Section 16 agreed to.
 SECTION 17.
Government amendment No. 57:
In page 15, subsection (1), line 27, after “District Court” to insert “or a Peace Commissioner”.
Mr. Collins: Section 17 empowers a justice of the District Court to issue a search warrant in the circumstances specified in the section authorising the Garda to search specified premises or places in order to search for evidence of the commission of an offence under the Act and to seize anything found there for that purpose. The amendment will empower a peace commissioner to issue similar search warrants in similar circumstances. I am satisfied it would be desirable that peace commissioners should have this power, especially since the matter may be urgent, because there may be a danger that the evidence might be removed and a peace commissioner may be more readily available than a district justice. Peace commissioners at present may issue search warrants under the Larceny Act, 1916, to search for stolen property. In July of this year the High Court held that the provision giving them this power was not contrary to the Constitution.
Mr. Hogan: I agree with the sentiment of the amendment introduced. On Second Stage I mentioned that it would be a very cumbersome operation if a garda had to wait until he received a warrant or an order from a district justice to confiscate equipment or to arrest somebody in connection with a crime under this legislation. I am glad the Minister has taken the cost factor into account here. The peace commissioners will not cost a lot of money and I am sure there are enough of them in Ireland at present to be easily accessible to a garda but perhaps the Minister will have to appoint more. I applaud the commonsense aspect of this amendment. A peace commissioner is more readily available and on the spot. A garda will always have a peace commissioner near at hand when he needs him. I am glad the Minister has  taken out the cumbersome element in the form of the expensive procedure and the delay in going before a Justice in order to give a garda powers of arrest, to confiscate or to search.
Mr. Ferris: I hope I will not be accused of having a vested interest, but as a responsible peace commissioner I welcome the additional powers conferred on me in this Bill. I can assure the Minister that there is not a cost factor involved. May I assure Senator Hogan and the Minister, both of whom are obsessed with the cost factor, that I will act any time for them and I will not charge anything.
Mr. McEllistrim: I also welcome this amendment. I feel that peace commissioners would be much more readily available than district justices. Certainly it is well worthwhile having it included in the Bill.
Amendment agreed to.
Section 17, as amended, agreed to.
Sections 18 to 20, inclusive, agreed to.
Question proposed: “That section 21 stand part of the Bill.”
Mr. Collins: I said on Second Stage that it might be necessary to move an amendment to section 21 to change the references to 1988 in subsections (a) and (b). It now appears that such an amendment will be required. I mention this now so that I may move the amendment on Report Stage. It should be clearer by then if an amendment is required. I give notice that I may have to do that.
Question put and agreed to.
Section 22 agreed to.
Amendment No. 58 not moved.
Section 23 agreed to.
 Sections 24 to 27, inclusive, agreed to.
Title agreed to.
Bill reported with amendments.
Acting Chairman: Next Stage?
Mr. Ferris: Is it possible speak on the Bill?
Acting Chairman: No.
Mr. Collins: With regard to the next Stage——
Mr. Ferris: I wanted to refer to two sections that had not been amended but are now part of the amended Committee Stage. At the request of Senator Ryan——
Acting Chairman: It is not possible to refer to those sections now.
Mr. Collins: With regard to the next stage of the Bill and having regard to the discussion which we had here today and the discussion on 4 November, I have given a commitment to give further thought, in particular, to the question of licensing of suppliers and a number of other matters. If I am satisfied or convinced that I have to introduce amendments to provide for licensing of suppliers I feel that I should say to the House there will be a considerable amount of drafting to be done. I am told that somewhere in the region of 15 extra sections will be required in the Bill. I hope I am not upsetting anyone's conscience by saying that as it will involve a cost factor. I would need until mid-December before I would be ready to come back to discuss it. There are one or two matters that would have to be cleared with the Government as well. I need a little bit of time to manoeuvre.
Mr. Ferris: It is appropriate that the Minister should have whatever time is considered necessary by his advisers to  look at this section with a view to strengthening the Bill. I want to facilitate the Minister in every way possible to do that. Considering that the Minister has offered to consult with us it is appropriate that we should have a proper process to do so and not tie it to times. We can set a date for next week and we can take it any time after that.
Mr. Collins: I have also given Senator Ferris a commitment that I will convey my decision to him before the date for the Fourth Stage is agreed so that he will not be unaware of what I am doing in case he wants to take a particular course of action if he is not satisfied with what I do.
Mr. Ferris: That is fine.
Mr. Collins: I want to make sure the Senator is given as much notice as possible bearing in mind what I want him to be able to do.
Mr. W. Ryan: It is proposed to take the remaining Stages on Wednesday, 9 December 1987.
Report Stage ordered for Wednesday, 9 December 1987.
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